Poignand and Comcare (Compensation) - [2019] AATA 2706

Poignand and Comcare (Compensation) [2019] AATA 2706 (16 August 2019)
Division:GENERAL DIVISION
File Number(s): 2016/5670
Re:Billie Poignand
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:16 August 2019
Place:Canberra

The reviewable decision of 14 September 2016 is varied, to the extent that Mr Poignand is entitled to compensation pursuant to s 14 of the Act for aggravation of major depression, with a date of injury of 18 May 2016, being an injury which resulted in incapacity for work. The Tribunal directs that Comcare pay 75% of Mr Poignand’s costs of the proceedings (including the interlocutory proceedings) as agreed or assessed in accordance with the Tribunal’s Practice Direction on Taxation of Costs.
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Deputy President Gary Humphries AO
Catchwords
COMPENSATION – aggravation of major depression – whether Mr Poignand suffered an injury or an aggravation of an injury by incidents in 2014 and 2016 – whether liability excluded in either incident on the basis of being reasonable administrative action performed in a reasonable manner in respect of his employment – Tribunal finds that the 2014 incident meets the reasonable administrative action exclusion – Tribunal finds that the 2016 incident was not done in respect of Mr Poignand’s employment and liability exists as at that date – decision under review varied
PRACTICE AND PROCEDURE – scope of Tribunal’s jurisdiction to make a decision under s 19 of the Act where the reviewable decision and the initial claim for compensation does not address that question in an express or implied manner – where material before the Tribunal may demonstrate Mr Poignand’s incapacity for work – absence of contextual submissions
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Abrahams v Comcare[2006] FCA 1829
Comcare v Lofts[2013] FCA 1197
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Reardon (2015) 148 ALD 356
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Horton and Australian Capital Territory [2019] AATA 953
Kennedy v Comcare[2014] FCA 82
Kennedy and Comcare [2017] AATA 1271
Lees v Comcare (1999) 56 ALD 84
Lim v Comcare [2019] FCAFC 104
Long v Comcare [2016] FCA 737
Muir v Comcare[2016] FCA 346
National Australia Bank Limited v KRDV[2012] FCA 543
Nguyen and Comcare [2018] AATA 1623
REASONS FOR DECISION
Deputy President Gary Humphries AO
16 August 2019
INTRODUCTION

The applicant, Billie Poignand, has been an employee of Geoscience Australia (GA) since 2006. Between 2012 and 2014 he worked at GA’s Canberra laboratories in technical, and occasionally administrative, roles. He commenced at the APS3 level in 2006 but by 2012 he had experienced periods of acting at the EL1 level.
On 25 May 2016 Mr Poignand made a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for a psychological injury (later characterised as a major depressive disorder, recurrent episode).[1] He claimed that his condition was caused by stressors caused by poor work design and the inappropriate assignment of higher duties within his team in the laboratory where he worked. He claimed that he first noticed his symptoms in July 2014.
[1] The use of italicised text in this decision generally indicates direct quotation.
Comcare issued a determination dated 28 July 2016 denying liability for the condition. Its delegate considered that Mr Poignand had suffered a psychological ailment which had been significantly contributed to by his employment, but found that the circumstances of the claim fell within the exclusionary provisions of s 5A of the Act (that is, his condition was the result of reasonable administrative action taken in a reasonable manner in respect of his employment). Mr Poignand sought reconsideration of this decision in August 2016, but on 14 September 2016 Comcare affirmed the determination of 28 July 2016. On 26 October 2016 he applied to the Tribunal for merits review of this reviewable decision.
In the course of the hearing over 28-30 May 2019, it became apparent that there were two occasions when Mr Poignand may have suffered a potentially compensable psychological condition in the course of his employment: the first in early July 2014 (the 2014 incident) and the second on 18 May 2016 (the 2016 incident). The parties agreed – and the medical evidence supported – that, although there were other work-related incidents before, between and subsequent to those dates which were psychologically distressing, only the 2014 and 2016 incidents had the potential to cause or aggravate a psychological condition which afflicted Mr Poignand, and which could constitute the basis on which compensation under the Act would be payable to him; subject only to the question of whether either incident was reasonable administrative action, undertaken reasonably, in respect of his employment.
THE RELEVANT LEGISLATION
Section 14 of the Act entitles an employee to compensation in respect of an injury resulting in incapacity or impairment. Injury is defined 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.
The term disease is defined in s 5B:
(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.
THE ISSUES BEFORE THE TRIBUNAL
The medical and other evidence referred to below demonstrates that Mr Poignand suffered a psychological condition arising from the 2014 incident. That was the submission of both parties. The parties further agreed that this condition arose on 8 July 2014, following a meeting between Mr Poignand and his supervisors on that day, and that factors related to his employment were primarily implicated in the onset of the condition. Although the medical evidence is not uniform as to the precise date in July 2014 that the injury arose, I find that he did suffer a work-related injury on 8 July 2014. My reasons follow below.
The medical evidence is somewhat more ambiguous on the question of whether Mr Poignand suffered an injury, or an aggravation of an injury, pursuant to s 5A as a result of the incident on 18 May 2016.
If it finds that he suffered work-related conditions in 2016, the Tribunal must then turn to the question of whether compensability for the 2014 and 2016 conditions is excluded by virtue of the exemption in s 5A relating to reasonable administrative action. Mr Poignand’s counsel contended that he suffered a mental injury (other than a disease) (also called an injury simpliciter) pursuant to s 5A(1) – not a disease pursuant to s 5B – in relation to each of the 2014 and 2016 incidents. Comcare contended that the condition arising from each incident was a disease. However, as the exclusion in s 5A applies equally to an injury and a disease, nothing turns on this distinction. The medical evidence comfortably supports the finding that the condition in each case arose out of, or in the course of, Mr Poignand’s employment (the test for an injury simpliciter) and was contributed to, to a significant degree, by that employment (the test for a disease).
The issues before the Tribunal, accordingly, are:
(a)Did the 2014 incident constitute reasonable administrative action, taken in a reasonable manner, in respect of Mr Poignand’s employment?
(b)Did the 2016 incident give rise to him suffering a mental injury, pursuant to s 5A?
(c)If so, did the 2016 incident constitute reasonable administrative action, taken in a reasonable manner, in respect of his employment?
THE 2014 INCIDENT
In early 2014 a major staffing restructure was undertaken at the Canberra laboratories of GA. The new structure commenced on 1 April 2014. On 6 May 2014 Mr Poignand was assigned the role of Laboratory Manager, at the EL1 level, in the Inorganic Geochemistry Laboratory. The role was assigned on a temporary rotating basis…to build experience at management/leadership roles for succession planning ahead of anticipated departures of senior staff. Between then and the end of August a total of three staff members, including Mr Poignand, were to fill the position in rotation.
The position of Laboratory Manager had previously been held by Mr Bill Pappas, who was then seeking retirement. Mr Pappas remained in the laboratory, where it was envisaged that he would train those who were now acting in his former position.
During June and early July 2014 Mr Poignand carried out the role of acting Laboratory Manager. In a statement dated 27 April 2018, he gave this account of the 2014 incident:
21. As part of my duties, I continued to assignment staff members with tasks to complete [sic].
22. On 30 June 2014, I sent an email to all members of the team asking for work progress updates…On this day I received an email from Mr Pappas about work leave and replied requesting a task be completed…
24. On 2 July, Tara Webster, a member of the inorganic geochemistry team was unwell and was not at work that day…The team meeting proceeded with Dr Sircombe in attendance. Part of this meeting included discussing work allocation and progress including job 31442, one of the jobs I delegated to Mr Pappas on 24 June. No issues or concerns about my performance were raised at this meeting.
25.In the afternoon of 2 July 2014, I attempted to talk with Mr Pappas about his contribution to the work of the team. I asked Mr Pappas words to the effect of “why has job 31442 not been done? Other people are depending on you completing his task so that they can do their work [sic].” This conversation was intended to be casual and non-confrontational. No other people were present besides Mr Pappas and myself [sic].
26.Mr Pappas became very angry, stepped very close to me in a physically intimidating manner and refused to discuss his task. I tried to de-escalate the situation by saying words to the effect of “We could talk about this tomorrow if you like”. Mr Pappas remained adamant that we would not discuss the matter further and left. The exchange was unexpected, happened quickly and I estimate it took less than a minute.
27.It was not until a few minutes later that I became very shaken. I was very upset with Mr Pappas’ response to what was a reasonable enquiry I had made about his task. As acting team leader I had a duty to ask about his work and had done so in a respectful and reasonable manner. I sent an email to Mr Pappas about his behaviour at 5:35PM on 2 July 2014 and included Dr Sircombe to make him aware of the situation…
29.At 9:30AM on Thursday 3 July, I and Mr Pappas met with Dr Sircombe at his request to discuss the confrontation of the previous afternoon [sic]. Then at 12:36PM, I received an email from Mr Pappas advising me that he had completed his part of job 31442. I replied, thanking him for his contribution and committing to complete the remainder of the job myself…
30.The confrontation by Mr Pappas was resolved on 3 July. It still left me shaken and feeling anxious and I saw a doctor that day in the evening after work.
33.On 8 July 2014, I accepted a meeting request that Dr Sircombe scheduled for 3:00 PM that afternoon to discuss with me and Mr Royal inorganic geochemistry laboratory issues. I had no notice beforehand of what was specifically going to be discussed.
34.I attended the meeting with Dr Sircombe and Mr Royal. At the outset of the meeting Mr Royal told me words to the effect of “We have some issues to discuss and that some of them will be quite confrontational.” Dr Sircombe and Mr Royal then proceeded to raise a number of complaints against me. These included:
a.    The manner in which I had managed the issue with Mr Pappas’ performance the previous week and the impact this had on other staff in the team. Particular reference was made to the impact this had on the health of people in the team. I indicated words to the effect of “I thought I had acted appropriately in treating Bill as I would any team member.” Mr Royal stated words to the effect of “Bill’s role was as a teacher and not just a team member.” This had not been my understanding when I took on the temporary higher duties. I stated words to the effect of “This was not my understanding and I had discussed with Keith my reservations about how Bill would respond to reporting to me as acting manager at the start of the temporary assignment.”
b.    I was informed that Mr Pappas and Ms Webster would be on leave for the remainder of the week due to health concerns surrounding the recent tensions in the team.
c.    I was informed that one team member had complained about me micromanaging or hovering over people while they were working. I was not told which staff member had complained or given details of the specific allegation. I responded with words to the effect of “This is a misinterpretation as I had been either briefly checking on people or working collaboratively with them. In some cases I checked on particular team members more often than I would have liked as I had concerns about their performance or workload, while other team members did not require checking as frequently.
d.    Dr Sircombe raised a complaint about an instance where I had restricted access to a document that Janice Trafford had been working on some six months earlier. Ms Trafford was a team leader of another team in the section. I indicated words to the effect of “this had taken place over six months earlier. There had been a good reason to restrict access to the document. Janice had not been prevented from accessing the document and the matter had been addressed at the time.” I thought the complaint was trivial and unrelated to the current alleged issues.
35.I was asked to assess my performance as acting lab manager. I had to concede that I had performed poorly given the complaints I had just been made aware of and the alleged impact on the team said to have been caused by my actions.
36.I was told that my temporary assignment to team leader was to be terminated effective immediately. I was told to take the next two days off work and to return to work on Friday 11 July. The stress I had been feeling since the confrontation with Mr Pappas was compounded.
37.This was a shock and caused me considerable stress. I had done nothing wrong and viewed the termination of my higher duties as unreasonably punitive.
38.Dr Sircombe had supported my position as team leader the previous week in meetings with Mr Pappas and had asked Mr Pappas to complete the task that I had assigned him as acting team leader. Dr Sircombe appeared to take a very different approach on 8 July 2014 which contributed to the shock I experienced.
Mr Poignand gave evidence at the hearing about this incident, in substantially similar terms to his statement.
Under cross-examination, he was taken to an email he sent to Mr Pappas after their confrontation on 2 July 2014. Headed Unsatisfactory work effort, the email upbraids Mr Pappas over his failure to complete the particular task assigned to him. It states I would like to meet with you at 10am tomorrow in my office to discuss your attitude and performance. Mr Poignand accepted counsel for Comcare’s suggestion that this email was maybe a little heavy-handed. He said that at the time he sent it he was quite shaken by the way that [Mr Pappas] had responded earlier in the day. He accepted that the tone of the email would be grating on Mr Pappas.
Counsel for Comcare also asked Mr Poignand about what was discussed in the meeting on 8 July 2014. Mr Poignand said that the meeting focused on the confrontation between him and Mr Pappas of the previous week. However, he said he was told that other team members were distressed by the conflict between himself and Mr Pappas; reference had also been made to my approach to records management. He emphasised to the Tribunal that no member of the team had made a written complaint about him; concerns supposedly expressed by team members to Dr Sircombe and Mr Royal were not real. He said he only became aware some time later that there were allegations made against him – though not in writing – by team members Christian Thun and Janice Trafford, and possibly by Tara Webster and Mr Pappas. He agreed that members of the team were offered counselling by the Employee Assistance Program in early July.
Mr Poignand told the Tribunal that soon after the 2014 incident he was moved to a new office away from other staff, which he described as a storeroom. He said he had been demoted and expelled from the team. In his statement he said he felt humiliated and very stressed about this relocation. On 4 August 2015 he made a complaint about an injury sustained by him on the basis of bullying, discrimination and harassment.
Mr Poignand said that Dr Sircombe was not entirely honest about how he had dealt with him.
Two statements by Dr Sircombe were tendered, dated 3 April 2017 and 21 May 2018. In an attachment to the first of these, Dr Sircombe set out his response to Mr Poignand’s allegations about bullying and harassment. He said, inter alia:
On 2 July, Mr Poignand and Mr Pappas had a heated argument in the laboratory that was overheard by other staff and apparently came close to a physical confrontation. I was not told of the argument at the time. Later that day, Mr Poignand emailed Mr Pappas warning him that he would be cited for underperformance due to an uncompleted assigned task.
I was cc’d on the email and upon receipt later in the evening I requested a meeting with Mr Poignand and Mr Pappas the following morning. At the meeting I realized that the animosity was not going to be quickly overcome and sought further advice from Mr Royal. We undertook a series of discussions with Mr Poignand, Mr Pappas and other staff in the Inorganic team. By 7 July it became apparent to us that Mr Poignand’s tenure as acting manager had had a deeply negative impact on the team [sic]. Discussions were personally confronting with staff emotionally distressed, in tears and requiring to be sent home and take medical leave. At one point I was in tears myself and it was personally one of the most difficult periods of my career.
It became clear to us that, despite training and discussions about the intent of the rotation process, Mr Poignand had apparently employed an inappropriate style of management and personal interaction that relied on his concept of ‘seniority’ to allocate tasks and demand results. He had not disclosed emerging issues with his manager and, contrary to the intent of the rotation process, Mr Poignand appeared to exclude himself from sample preparation or analytical work. Mr Pappas reported that he had been given an unreasonable amount of basic sample preparation work to do – contrary to the intent that he was to focus time on training three staff in ICP-MS analysis. Other staff reported intimidating behaviour from Mr Poignand including standing over staff while at their workstation in order to make them work faster and pressuring staff to release results that had not been quality checked.
The degree of distress we found we found in the Inorganic team caused myself and Mr Royal to take two immediate actions: 1) to report the situation to HR and call in assistance from the Employee Assistance Program on 8 July and 2) Mr Poignand was stood down from the acting manager position (and subsequently moved to another office on 15 July).
The reasons for the change were explained to Mr Poignand at length on 8 July and focused around the facts he had not demonstrated adequate ability to manage the Inorganic team in an appropriate fashion and he had not reported or sought assistance for escalating inter-personal issues with other staff. In short he was told he had underperformed in the role. Appreciating that it was also a shock for him, we asked Mr Poignand to consider that the sudden change was a chance for him to evaluate circumstances and find ways to remedy the gaps in his management and inter-personal skills.
Alarmingly for us, Mr Poignand appeared to have limited willingness to accept his contributions to the problems or empathy for the impact of his actions on others in the team. In discussion he attempted to link events to a perceived campaign by others in the broader laboratory to undermine his career because they were threatened by his management aspirations and struggled to acknowledge that his behaviour had been inappropriate.
… Further informal discussions by myself and Mr Royal among staff in the broader laboratory indicated that this incident had been preceded by other problems also allegedly centred around Mr Poignand’s approach to persona interaction, personnel and document management which suggested a pattern of inappropriate behaviour over several years. Some of these alleged incidents were duly documented, but on advice from HR, no further action was taken and management efforts were focused on restoring the affected staff to normality.
The premature termination of Mr Poignand’s acting manager role was in response to clear indications of his unsuitability to continue the role. I understand that the events were also traumatic to Mr Poignand, but to retain him in a role in close contact with distressed staff would have been a failure of duty of care and his removal was an unfortunate, but necessary, management decision.

Dr Sircombe also made this comment about working with Mr Poignand:
It has been very challenging at times because Mr Poignand’s often rigid perspectives and expectations make the nuanced ‘coaching/development’ style of management I prefer to use with staff very difficult.
An email dated 10 July 2014 from Dr Sircombe to the manager of the GA work, health and safety team, in which he summarised the meeting of two days previously, was tendered. Inter alia, the email read:
When asked to explain his perspective, Billie indicated that the dispute had arisen over the last week because Bill was not following Billie’s instructions to carry out some sample preparation work. Billie believed that the underlying cause of this was that Bill had refused to accept Billie as the acting Lab Manager. Guy reiterated that the intent of the acting Lab Manager role was to learn from Bill to support succession planning and that it seemed Bill had not been given sufficient respect for his knowledge and experience. Billie acknowledged that his email requesting to discuss underperformance with Bill was, in hindsight, hasty, but he felt that he was attempting to manage underperformance as has been recently highlighted by senior management across the agency.
We continued to discuss the roles and responsibilities of a manager and some other incidents that had occurred including asking Tara to provide data and standing by her while she completed processing, frequent prompting of Simon Webber to complete work to the point Simon felt micromanaged, managing experiments testing new procedures and not reporting conflict between Jessica and Bill about this. A number of previous incidents were also discussed including the lack of communication about locking down other people’s files in TRIM and conflicts with Christian Thun and Janice Trafford when working with them.
Billie was open to these discussions and at no time did he become hostile or disengaged. He indicated a belief that he had been acting in the best interests of the productivity of the Lab, but also stated regret that the conflicts had built to a point that people were on leave and seeking medical advice. Billie indicated that he was aware that there were some stresses in the lab related to work priorities and uncertainties around contracts, but he wasn’t aware that they had become so bad. When asked to rank his own performance in the acting Lab Manager’s role from 1 to 10, Billie stated ‘six’ and acknowledged that he could have acted in more appropriate ways [sic]. When we outlined that there was a pattern of similar conflicts in the past with other Lab staff in other areas, Billie acknowledged that this was something he would need to look at more closely. Billie also said that he believed that there were systemic cultural problems in the Level 3 Labs around long-term staff that manifested as favouritism in assigning tasks and credit for those tasks and he speculated that there were active attempts to discredit him.
We concluded that the acting Lab Manager role would cease immediately and recommended that Billie take a few days off in the interests of his own health and to reflect on the situation. He agreed and also agreed to meet again on Friday (11^th) to discuss the next steps in finding a role and tasks that he could work with. We also suggested that EAP and HR was available to discuss matters if he wished [sic]. Billie also agreed that his was happy with the discussion and apologised again that the issues had come to this point [sic].
Dr Sircombe also gave evidence to the Tribunal. He recounted concerns by other team members about the management style of Mr Poignand. These concerns included insistence by Mr Poignand that team members get their work done within particular timeframes. One member complained of being micromanaged. Dr Sircombe said that these and other issues pertaining to Mr Poignand caused a great deal of trauma to the staff in the section. One team member went home stressed. Dr Sircombe said that in the period leading up to the meeting on 8 July 2014, some team members approached him about these issues, in other cases he asked team members for their views. In early July 2014 he consulted with GA’s Human Resources team (the HR team) to discuss how this problem might be managed.
Under cross-examination, Dr Sircombe said that the issues team members were raising with him included Mr Poignand’s scheduling of work flow through the laboratory. This had caused an environment of … constant conflict. He referred to the case of Ms Webster, where myself and Mr Royal sat with her for 2 hours while she cried intensely.
He said that an electronic container had been created where staff could lodge their concerns about Mr Poignand. The container had been created following the incident on 2 July 2015, but was unable to say what had been put in the container. He was referred to an email he had written on 27 July 2015 to the HR team where he said that the issues raised about Mr Poignand resulted in Billie being stood down as acting manager…. Dr Sircombe denied that the issues recorded in the container were necessarily those that led to Mr Poignand being stood down as acting manager.
In relation to the meeting of 8 July, he said that he didn’t go into the meeting with a preconceived outcome in mind. Dr Sircombe recalled that the removal of Mr Poignand from the laboratory manager role may have been contemplated in discussions he (Dr Sircombe) had with Mr Royal prior to the meeting, but it was Mr Royal who had decided during the meeting that the removal should occur. He considered it, however, one of the potential outcomes of that meeting.
The discussion at the meeting included an attempt to try and understand [Mr Poignand’s] side of the story. This included asking him questions around some of the other incidents that had been raised by other staff members. He said they told Mr Poignand that the intent of his manager role was to learn from Bill [Pappas] and to support succession planning. It seemed to Dr Sircombe and Mr Royal that Bill had not been given [by Mr Poignand] sufficient respect for his knowledge and experience. He said that Mr Poignand acknowledged that his email to Mr Pappas of late in the afternoon of 2 July had been hasty, though Dr Sircombe added that he thought Mr Poignand had been trying to divert blame about the situation and talking about that others were conspiring against him. He disputed that the decision to remove him was undertaken abruptly, and without fairness.
Comcare tendered an email from Mr Thun to Dr Sircombe dated 7 July 2014, in which he wrote:
Janice and I would like to meet with you to discuss the recent developments in the inorganic chemistry laboratory as we are concerned about a few things
Mr Royal gave evidence. His outline of evidence dated 6 March 2018 was tendered. He told the Tribunal he met with Ms Trafford and Mr Thun soon after the incident of 2 July 2014. He said that they told him the behaviour Mr Poignand had caused upset and harm within the section. At the meeting of 8 July he and Dr Sircombe asked Mr Poignand for his version of events. In turn, they explained to Mr Poignand the need for staff at GA to have a safe working environment. He said that Mr Poignand appeared to acknowledge that the laboratory manager was required to uphold those standards.
Mr Royal said that both he and Dr Sircombe concurred before the meeting of 8 July that it was appropriate Mr Poignand be relieved of the role, to ensure no continuation of the situation they were discussing. The decision was Dr Sircombe’s, one he supported. He said he thought Mr Poignand was disappointed at this outcome at the meeting on 8 July.
When asked under cross-examination as to what issues (other than the confrontation with Mr Pappas) had been brought to his attention regarding Mr Poignand, Mr Royal referred to the behaviours. He described these as lacking empathy, and not really exercising the appropriate behaviours of a manager in those situations. He said management’s duty of care to staff required that the acting arrangements be suspended.
Mr Royal was unable to recall details of what he and Dr Sircombe discussed before the meeting about its expected outcomes. As to which of them had put to Mr Poignand in the meeting that his higher duties would be terminated, he said I don’t recall who actually said it; I believe Dr Sircombe advised him of that… He said he was there in support of the decision that Dr Sircombe was making. He said this was based on a view they had formed, prior to the meeting on 8 July, that the acting arrangements needed to be suspended.
In re-examination, Mr Royal clarified that he did not really recall which of he or Dr Sircombe had advised Mr Poignand of the suspension of his higher duties. In answer to a question from the Tribunal, Mr Royal said the focus of the meeting on 8 July was the incident on 2 July with Mr Pappas and its downstream effect on other staff in the section. He also said that at this time he had been unaware of Mr Poignand’s previous medical history, including his susceptibility to anxiety.
THE 2016 INCIDENT
By May 2016 Mr Poignand was working in the Palaeontology/Sedimentology Laboratory. He told the Tribunal that at that time his team had a short term but high-intensity project to complete. The project involved taking samples which had previously being tested, and reanalysing them using a different method of analysis. Five short-term employees were recruited to complete this task. It was a high-pressure environment.
Mr Poignand said he considered it very important that the correct method be identified and employed. He said he consulted widely in the preceding months talking to people and refining the best method. However, after Mr Poignand had worked on the project for a period of time, Mr Thun, his supervisor,
…decided that he wanted to change the method and I was very put out… I had put a lot of effort into making sure that we had the right method…
On 18 May 2016 Mr Thun had an informal meeting with the client who had commissioned the work, himself a sedimentologist. Mr Poignand was very busy that day and couldn’t attend any unscheduled meetings, including the meeting with the client. At 2pm that day a team meeting was held, where Mr Thun announced that the method was going to be changed; there wasn’t going to be any further discussion about the matter. Mr Thun wanted Mr Poignand to come with him to announce the change to the temporary staff. Mr Thun slammed his hand on the desk and said that anyone who doesn’t agree with the new method he would march down to the section leader’s office. Mr Poignand said he was humiliated by this behaviour and had a panic attack soon afterwards.
He left work early on that day. Medical certificates determining unfitness for work were tendered, apparently covering periods up to 28 October 2016.
Under cross-examination, Mr Poignand said that Mr Thun had originally assigned the project to him to lead. He said that at a much later stage his colleague Abby Loiterton had been given the task of collating the document which would reflect the method to be used by the team. However, Mr Poignand had previously drafted and circulated his own version of the method, and had sent a copy to the client when the latter had requested to see it.
Ms Loiterton’s draft version of the method was circulated around the team on 10 May 2016. Mr Poignand said he gave her informal verbal feedback on the draft, since they shared an office.
He described the informal meeting between Mr Thun and the client on 18 May 2016 as follows:
…I feel that was part of what I considered to be an underhanded way of changing the method without consultation. We had gone through months of consultation. I had the method. Then Mr Thun wanted to change that method, and he did that by going directly to the client without any consultation, no chance to discuss the matter, and later that afternoon insisted that that was the method we were going to go with.
Mr Poignand said that the informal meeting was very important, and therefore should have been a scheduled meeting, not an impromptu one. He agreed that he had been invited by Mr Thun to attend the meeting, but was incredibly busy and declined.
He gave evidence that he attended the team meeting at 2 o’clock but told the team that he didn’t agree with the method then being described to the meeting and wanted a further meeting to discuss it. He agreed that Ms Loiterton was upset at the meeting, because of Mr Thun saying one thing and me saying another. Mr Poignand told the Tribunal he was not outright objecting to the change, but wanted further opportunity to discuss it. He said he thought it was unreasonable to disregard the product of months of consultation, based on a brief discussion with the client.
Mr Thun also gave evidence. He described various difficulties encountered over a ten-year period in which he worked with Mr Poignand in various roles. It was put to him that Mr Poignand likes things to be done his way…rather than negotiate about how things are done. He agreed with this proposition. As his sometime supervisor, Mr Poignand would accept feedback from Mr Thun dismissively.
In relation to the sedimentology project of May 2016, he said he had asked Ms Loiterton to prepare the operating procedure for the project. When he discovered that Mr Poignand had written his own method for the project, Mr Thun wasn’t overly happy, because that wasn’t a way to treat a staff member [i.e. Ms Loiterton]. He said that when he contacted the client, who had seen both Ms Loiterton’s and Mr Poignand’s method, the client preferred the former. Hers had more detail, he said. Mr Poignand just wanted a cut-down version. Mr Thun said he had invited Mr Poignand to join the informal meeting with the client on 18 May 2016 several times; twice before the meeting and once as Mr Poignand was passing by.
At the meeting at 2 o’clock on 18 May, Mr Thun was called out of the meeting briefly. On his return he could see that Ms Loiterton was distressed and crying. He attributed this to what Mr Poignand had said in his absence about the project. At this point he ceased the meeting, and raised my voice a little bit. He made a movement with his hand, which he illustrated at the hearing by bringing his hand firmly, but not violently, down on a desk. He said At that point, I had had enough. He said Mr Poignand was trying to dictate how they’re going to run this thing… The client had the ultimate decision about the method, and he – Mr Thun – was relaying that decision back to the staff. He told the meeting anyone who doesn’t want to listen to me, I’m happy to take them up to the section leader’s office. He described this as a warning to everyone at the meeting.
Under cross-examination, Mr Thun said he had earlier raised his concern that Mr Poignand had written his own method, despite Ms Loiterton having that responsibility, in a meeting where both Mr Poignand and Ms Loiterton were present. This occurred some three or four days before 18 May. Ms Loiterton was upset at this time.
Mr Thun resisted the suggestion by counsel for Mr Poignand that his comments in the meeting were aimed at Mr Poignand because he felt railroaded by Billie; he referred to another staff member, Ian Long, who was also challenging the method preferred by the client. He said:
At the end of the day, I aimed it at the group, because there were two people in the conversation, not just Billie, so I can’t say whether people would have thought that was aimed at Billie, or whether it was aimed at Ian, or whoever.
A statement from Ms Loiterton dated 28 November 2018 was tendered. In it she commented on the meeting as follows:
I became quite upset at this meeting due to Mr Poignand’s refusal to compromise and his attitude that he “knew best” and his view was the only “right” one.
She also made more general comments about Mr Poignand:
Generally I had no difficulty with Mr Poignand and we got along. However, it was very hard to communicate with him about things as he tended to be very black and white in his views and was not prepared to compromise.
THE MEDICAL EVIDENCE
Mr Poignand told the Tribunal he had no treatment for any mental health condition between 2006 and 2014.
With respect to his mental health from 2014 onwards, the Tribunal took live evidence from two psychiatrists, Dr Catherine Oelrichs and Dr John Saboisky, both called by Comcare. Reports of these doctors, dated 25 May and 14 June 2017 respectively, were tendered. Mr Poignand tendered a report by a third psychiatrist, Dr Ash Takyar, dated 13 March 2018, but Dr Takyar was not called to give evidence.
Drs Oelrichs and Saboisky gave concurrent evidence. There was substantial agreement between them with respect to their assessment of Mr Poignand. They agreed that in July 2014 he suffered from an adjustment disorder with mixed emotional features. They noted that he had a pre-existing condition of chronic anxiety before this time. They also considered that the altercation with Mr Pappas on 2 July and the meeting with Dr Sircombe and Mr Royal on 8 July 2014 contributed to the onset of his adjustment disorder, though it was the later meeting which was the big tipping point (in Dr Saboisky’s words) where his symptomatology became a lot worse. They said that, at some point after the 8 July meeting, Mr Poignand recruited enough additional symptoms to establish a diagnosis of major depression. This condition continued with fluctuations throughout 2015 and 2016, but never disappeared entirely.
The two doctors agreed that Mr Poignand became more symptomatic as a result of the incident of 18 May 2016. Dr Oelrichs felt that there had been some deterioration in his levels of depression at that time. She agreed that, if a worsening of his symptoms was properly described as an aggravation, he suffered an aggravation at that time. Dr Saboisky noted the report of another psychiatrist, Dr Scott Chambers, of 23 November 2016. Dr Chambers opined there that Mr Poignand had experienced an anxiety attack in early July 2016.
Dr Takyar’s diagnosed major depressive disorder and generalised anxiety disorder as at July 2014. He noted that the confrontation with Mr Pappas on 2 July 2014 lead to the development of anxiety symptoms primarily, though he later attributed roughly 30% of his symptoms to the confrontation on 2 July. He also opined that Mr Poignand received a mental injury which was contributed to by the incident on 18 May 2016, though this injury was part of the work-related injury from 2014.
CONSIDERATION
Did the 2014 incident constitute reasonable administrative action, taken in a reasonable manner?
A number of decisions guide the Tribunal with respect to the question of what constitutes reasonable administrative action. Robertson J in Comcare v Martinez (No 2) [2013] FCA 439 observed that the impact of administrative action on an employee does not of itself establish whether or not that action was taken in a reasonable manner (at [73]); the test of reasonableness is an objective, not a subjective, one. Nor does the action taken need to be perfect, nor the best possible course of action with respect to that employee, to satisfy the exemption:
In my view it could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably. (at [81])
In this case, counsel for Mr Poignand submitted that Mr Poignand had not crossed the Mooi threshold – that is, his injury had not reached the threshold for compensability envisaged in s 5A – at the incident on 2 July 2014. He crossed that threshold at the meeting on 8 July, which was unquestionably administrative action in respect of his employment. The thrust of that submission was shared by counsel for Comcare. I accept those submissions, which are consistent with the evidence of Drs Oelrichs and Saboisky but inconsistent with that of Dr Takyar, who thought that he developed anxiety symptoms on 2 July. I do so because Dr Takyar did not give live evidence and his opinion could therefore not be tested. Drs Oelrichs and Saboisky diagnosed Mr Poignand with major depression, and I adopt that diagnosis as the finding of the Tribunal.

The parties further agreed that the act of suspending Mr Poignand’s higher duties on 8 July was reasonable administrative action; however, his counsel argued that it was not action taken in a reasonable manner.
The evidence does indeed support the view that it was reasonable to take decisive action in response to a seriously-deteriorating position within the inorganic lab. Two staff members had taken leave on account of tensions within the lab which appear to have had their origin in Mr Poignand. At least two, and possibly four, staff had made oral complaints to either or both of Dr Sircombe and Mr Royal about him.
In the Tribunal’s view, the issue at the heart of the incident on 2 July 2014 had been poorly handled by Mr Poignand. It is true that he had been appointed acting manager of the laboratory, and he was therefore technically responsible for the performance of his team; however his actions in respect of Mr Pappas failed to take into account that Mr Pappas was no ordinary member of his team. Clearly, Mr Pappas was exercising a leadership role without a title to go with it. In upbraiding him personally and by email on 2 July, Mr Poignand fail to appreciate the subtlety of his relationship with Mr Pappas. Moreover, the clash between the two men either led to further friction within the wider team or was a flashpoint for tensions already manifest. Patently, action by Mr Poignand’s supervisors to diffuse this situation was necessary and reasonable.
The Tribunal further considers that the action they decided on – to suspend staff members’ (including Mr Poignand’s) rotation through the lab manager role – was action taken in a reasonable manner. The evidence shows that Dr Sircombe and Mr Royal took soundings from other staff in the lab. The evidence on precisely how this occurred was conflicting at points, but there is little doubt that they undertook those soundings and that the soundings overwhelmingly pointed to a problem linked with Mr Poignand. Quite reasonably, a meeting was organised between the three men to consider this issue and determine a course of action. The timing and structure of the meeting appears to have been consistent with advice provided by the organisation’s HR team.
Again, the evidence, firstly, on what discussions occurred between Dr Sircombe and Mr Royal before the meeting and, secondly, what was said at the meeting was conflicting. Of concern in this respect was not only the difference in evidence between the supervisors and Mr Poignand, but also the difference between the evidence of the supervisors themselves. Dr Sircombe told the Tribunal that it was Mr Royal who decided, in the course of the meeting on 8 July, that Mr Poignand should be suspended as acting manager, and that this outcome had not been expressly settled upon prior to the meeting. Mr Royal, conversely, said initially that Dr Sircombe conveyed to Mr Poignand the decision – previously agreed between the two men – that his role was being suspended, though he later agreed that in fact he couldn’t recall how the news was delivered. Counsel for Mr Poignand suggested that the evidence of Dr Sircombe and Mr Royal was somewhat evasive, and could not be relied upon. He suggested that the supervisors were feeling pangs of guilt for the way they had handled Mr Poignand, and were accordingly avoiding the questions.
However, the Tribunal found Dr Sircombe and Mr Royal to be honest witnesses. The differences in the accounts they gave do not appear to have been motivated by any dissembling or malice; indeed each observed, with obvious justification, that it was difficult to recall the details of conversations held almost 5 years ago. In any case, I consider that some of the confusion in their answers was at least partially attributable to a lack of clarity in the questions put to them by counsel for Mr Poignand.
Counsel for Mr Poignand suggested that a more reasonable course of action would have been to outline to Mr Poignand in a meeting the perceived problems with his management style, to give him an opportunity to reflect on those issues, and then to reconvene the meeting, or hold a later meeting, to discuss the appropriate response. I accept that there is something to commend this approach, but I do not accept that it was therefore necessarily unreasonable to do as Dr Sircombe and Mr Royal did. The situation they faced was fairly critical, with staff calling in ill because of the workplace tensions. They took the opportunity to hear Mr Poignand’s view of what had occurred, but then conveyed in that same meeting a decision designed to deal with the problem. The manner in which this decision was taken – whether by agreement before the meeting or by one man announcing the decision in the meeting and the other supporting it – does not seem material. The fact is that it was the right decision and it was executed in a timely fashion, after hearing from Mr Poignand.
The reasonableness of this approach would seem to be reinforced by the evidence of Dr Sircombe and Mr Royal that Mr Poignand appeared to take the news of their decision calmly, and to apparently concede some shortcomings in his own performance. The same could be said about the fact that Mr Poignand did not raise any concern with his superiors about their decision until more than a year after the events of July 2014.
Counsel for Mr Poignand contended that there was a failure to observe procedural fairness, in that it was unclear from the evidence as to precisely which matters formed the basis for the decision to suspend him. The altercation with Mr Pappas was clearly a factor in the meeting of 8 July, but there was conflicting evidence as to the extent to which other issues in the lab, including complaints from team members, were put to Mr Poignand so as to allow him to respond to them before a decision was made on his higher duties.
Mr Poignand’s evidence was that he was told at the meeting that other team members were distressed by the conflict between himself and Mr Pappas, and that reference had been made to my approach to records management – a reference to a complaint made by Ms Trafford some 6 months previously. In his written statement he says he was informed that Mr Pappas and Ms Webster were on leave due to health concerns surrounding the recent tensions in the team. In the same statement he acknowledges that he was informed of one member’s complaint about being micromanaged.
As already indicated, there was a lack of cohesiveness in the evidence of Dr Sircombe and Mr Royal about what exactly was put to Mr Poignand at the meeting, but that should not be regarded as surprising given the passage of time. Irrespective of those disparities, certain conclusions about the meeting can be comfortably reached. First, a number of performance issues, not just those relating to Mr Pappas, were put to Mr Poignand in the meeting. This much is clear from his own evidence. Secondly, those issues were pressing in nature, apparently genuinely-held and had a direct impact on the performance of the lab. There is little evidence to support Mr Poignand’s assertion that the issues were not real. Thirdly, even if there had been some lack of substance or detail on some of the more general concerns about Mr Poignand’s manner of leadership of the team, the deficiencies in Mr Poignand’s handling of the issues concerning Mr Pappas were sufficiently serious, in my view, to warrant the action taken by Dr Sircombe and Mr Royal.
A further contention was that the process employed by Dr Sircombe and Mr Royal was not calibrated against Mr Poignand’s greater susceptibility to mental injury given his history of anxiety and depression. Taking that background into account, telling him bluntly and without warning in a meeting that he was to be demoted (using his language) was unreasonable, it was submitted. The problem with this submission is that there was no evidence that either Dr Sircombe or Mr Royal were aware of that background. Mr Royal explicitly denied that he knew in July 2014 of Mr Poignand’s previous history of mental illness. Counsel for Mr Poignand submitted that his client’s personality traits in the workplace must have been evident to the supervisors, calling for special consideration. I find little in the evidence to support such a contention, however.
Accordingly, I find that the meeting of 8 July 2014 was reasonable administrative action taken in a reasonable manner in respect of Mr Poignand’s employment.
Did the 2016 incident give rise to Mr Poignand suffering a mental injury, pursuant to s 5A?
The medical evidence demonstrates that Mr Poignand suffered a worsening of his existing mental health condition (major depression) as a result of the meeting of 18 May 2016. The evidence of each of Drs Oelrichs, Saboisky and Takyar, however, can be interpreted as saying that he did not suffer a new condition on that date, but rather that he suffered some fluctuation or worsening of his depressive illness at that time.
Dr Saboisky considered that Mr Poignand became more symptomatic as a result of the incident of 18 May 2016. Dr Oelrichs said that there had been some deterioration in his levels of depression at that time. She agreed that, if a worsening of his symptoms was properly described as an aggravation, he suffered an aggravation.
Although this evidence is not as clear as would be ideal, I find that Mr Poignand did suffer a worsening of his symptomology following the meeting of 18 May, and that this worsening was the result of that meeting. I take into account the emphasis both Dr Oelrichs and Dr Saboisky placed on the finding of Dr Chambers later in that year that Mr Poignand had suffered an anxiety attack as a result of the meeting. I also note that Mr Poignand began to take extended periods of leave following that incident, suggesting a substantial worsening of his existing depressive symptoms.
Her Honour Mortimer J in Comcare v Reardon (2015) 148 ALD 356 observed that “aggravation” connotes an ailment which has been “made worse” and has not simply “become worse” (at [34]). I consider that it is tolerably clear on the evidence here that the meeting of 18 May made Mr Poignand’s mental illness worse.
I find that Mr Poignand suffered aggravation of major depression, constituting an injury under s 5A, in May 2016. I now consider whether the exemption in relation to reasonable administrative action operates to defeat his claim.
Did the 2016 incident constitute reasonable administrative action, taken in a reasonable manner?
The evidence suggests that there was a measure of tension between Mr Poignand and Mr Thun over the sedimentology project in the days leading up to 18 May 2016. One could even observe that there was a battle of wills between them as to whose view would prevail on the appropriate method to be used on the project. Mr Poignand was very put out by Mr Thun’s decision not to accept his version of the method, while Mr Thun wasn’t overly happy that Mr Poignand had taken a different approach to Ms Loiterton, to whom he had recently assigned the role of writing up the method.
Whatever the office politics inherent in this process prior to 18 May, matters crystallised on that day in a way which brought the debate over the method to a conclusion. The client had come to the lab to discuss the method, and had determined that the version with more detail, that of Ms Loiterton, was to be the method which would proceed. A meeting was held at 2 o’clock to convey the client’s decision to the team in the lab, in circumstances where there was an element of urgency given that testing of the rock samples, the subject of the method, had already begun.
Mr Poignand had not been present at the meeting where the client had settled on his view of the better method. This was, it seems, a critical junction in the project facing the team in the lab. In the Tribunal’s view, there is no good reason why Mr Poignand should not have been at that meeting. It was patently an error of judgement on his part to eschew the meeting with the client – which he conceded was a very important one – in favour of giving instructions to temporary staff. The reason he gave – that the meeting to give instructions was a scheduled meeting whereas the meeting with the client was an informal meeting – is a demonstration of the inflexible thinking variously referred to by Mr Thun, Dr Sircombe and Ms Loiterton.
It was also clearly an error of judgement by Mr Poignand to take issue with the announcement being made about the approved method at the 2 o’clock meeting. It must have been apparent to him that what was being conveyed to the meeting was the view of the client, who was himself a qualified scientist in this field. Alternatively, it may have appeared that the meeting was being told of the decision made by Mr Thun who, as team leader, had the authority and responsibility to do so. Whatever the internal debates about the method prior to this point, those debates were now obviously irrelevant. To entertain the view that further discussion at another meeting should occur was clearly unrealistic. In addition, it must also have been apparent to Mr Poignand that to dispute the client’s instructions at this point would be viewed by others as disruptive, and possibly disrespectful to those who had attended the earlier meeting with the client. Ms Loiterton’s distress at his behaviour is testament to that.
Against this background, I consider that the actions of Mr Thun were reasonable and proportionate to the nature of the issue he confronted. As leader of the project, he had a obvious responsibility to convey to the entire team the decision that the client had made about the method. There was an urgency in that requirement that warranted a degree of forcefulness about how the team was to proceed: see, for example Nguyen and Comcare [2018] AATA 1623 at [56]. Mr Poignand’s view that the meeting with the client had been an underhanded way of changing the method without consultation is unsupportable, ignoring, as it did, that the decision was for the client, not Mr Poignand, to make. Conveying the outcome of the client’s deliberations to the 2 o’clock meeting in those circumstances, including to Mr Poignand, must be regarded as reasonable administrative action. I note that counsel for Mr Poignand did not seek to characterise that meeting any differently.
However, it was put to the Tribunal that Mr Thun’s method of conveying the client’s decision was inappropriate, that is, that it was not action taken in a reasonable manner. On balance, I cannot agree with that submission. As the project leader at a point where it was important to resolve uncertainty and disagreement about the future course of the project, Mr Thun was entitled to impose a decision on the team and to express that decision in direct and forceful terms: see for example Kennedy and Comcare [2017] AATA 1271 at [129]. A degree of firmness was also called for given that Mr Poignand’s behaviour was upsetting other team members. Giving Mr Poignand private forewarning of this decision might have mitigated his own upset, but that observation does not make it unreasonable for Mr Thun to have conveyed his decision to the 2 o’clock meeting in the manner that he did, given the exigencies then at play. As Robertson J noted in Comcare v Martinez (No 2) [2013] FCA 439 at [76]:
… some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work.
Nor do I regard his hand gesture at the time, nor the raising of his voice, nor the comment that dissent with his decision should be taken up with the section leader, as constituting unreasonable behaviour in connection with the decision. It appears that in his absence from the meeting a measure of confusion and dissension had broken out; on his return, Mr Thun was quite entitled to restore direction and order by exercising his leadership and authority in a dramatic fashion. Mr Poignand himself described Mr Thun as having done this in a slightly raised voice, and the hand movement Mr Thun demonstrated at the hearing was little more than a gesture for dramatic effect. As the Tribunal noted in Kennedy at [125]:
Sometimes a loud voice is needed to drive a point home. However, a loud voice alone does not constitute bullying or harassing behaviour. It is dependent on the context and surrounding circumstances within which it occurs.
To condemn such devices as being unsuitable to the environment of modern management would seem to me a bridge too far.
Accordingly, I find that the meeting of 18 May 2016 was reasonable administrative action taken in a reasonable manner.
Did the 2014 and 2016 incidents constitute administrative action in respect of Mr Poignand’s employment?
To avail itself of the s 5A exemption, an employer must demonstrate that not only was the administrative action which injured the employee conceptually reasonable, and executed in a reasonable fashion, it must also be action taken specifically in respect of his or her employment. The Full Federal Court articulated the nature of this additional requirement in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21. There, Rares and Tracey JJ said at [60]:
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”.
In his judgement, Gray J drew the distinction between administrative action that related to the employment of a particular employee and operational action
…in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment. (at [31])
In Long v Comcare [2016] FCA 737 Tracey J referred to the judgements in Reeve, before observing at [24]:
Both judgments established that “administrative action”, within the meaning of s 5A, must be employee-specific. It must entail more than the regulation of the normal incidences of a person’s employment. Such action may or may not involve the application or implementation of some particular policy. The “formality” or otherwise of a particular action on the part of the employer is not necessarily a determinative factor.
In this context there can be little doubt that the meeting of 8 July 2014 was administrative action taken in respect of Mr Poignand’s employment. He had been invited by email to attend the meeting to discuss the recent issues in the Inorganic Laboratory and what we need to do to move forward. The meeting focused, on the versions of all three attendees, on Mr Poignand’s acting leadership of the team and his performance. The parties in these proceedings submitted that the meeting was conducted in respect of his employment, in the terms of the exemption in s 5A, and I so find.
There was no agreement between the parties on the proper characterisation of the meeting of 18 May 2016. Counsel for Comcare submitted that the meeting of 18 May was an incident that was directed to [Mr Poignand’s] behaviour. Mr Thun’s pronouncement that dissent with the resolution of the dispute over the method should be taken up with the section leader was directly in response to Mr Poignand’s behaviour objecting to the agreed procedure. The style and tone of the pronouncement reflected the need to move quickly to implement the client’s decision as testing proceeded in the lab. Accordingly, Mr Thun’s pronouncement was a form of counselling of Mr Poignand, specifically informal counselling. It was clearly directed to the behaviour of Mr Poignand. The action which occasioned his injury, therefore, was in respect of his employment.

Counsel for Comcare conceded that the statement which injured Mr Poignand was directed to all of the team present in the meeting, but the statement had a different significance, and was intended to have a different significance, to Mr Poignand than to other team members. It was received by Mr Poignand as a warning, as was intended by Mr Thun. Counsel further conceded that the 2 o’clock meeting was, at least partly, operational in nature, but argued that this was merely the setting in which Mr Poignand received counselling for his behaviour.
Conversely, counsel for Mr Poignand argued that the meeting was clearly an operational matter which touched only incidentally on matters relating to his employment. Pursuant to the decision in Reeve, the action was therefore not conducted in relation to his employment and cannot attract the s 5A exemption.
Two decisions of the Federal Court consider factual circumstances very similar to those in the present proceedings, are binding on the Tribunal, and do not sit well with Comcare’s submissions.
The first of those decisions is Reeve itself. In that case, a bank manager who suffered work-related stress claimed compensation under the Act resulting from an injury caused by that stress. The injury resulted from a scheduled teleconference which included discussion of the performance of Mr Reeve and his work team, and a subsequent negative appraisal. The purpose of the teleconference was to discuss the performance of the branches represented by the various managers, as measured by customer surveys. Mr Reeve claimed to have felt upset and humiliated by his supervisor’s criticism of him in front of fellow managers at the teleconference. Rejecting the bank’s argument that the teleconference was a means of appraising Mr Reeve’s performance as an employee, Rares and Tracey JJ considered (at [64]):
The Bank’s argument that the wording of s 5A(2)(e) was broad enough to comprehend the teleconferences and uses of customer surveys in them as being done in connection with the appraisal of managers such as Mr Reeve also fail. The customer surveys may have been obtained and provided to Mr Reeve in connection with a future appraisal of his performance. The issue that now arises is whether what was done was done in connection with (s 5A(2)(e)) reasonable administrative action that consisted of a reasonable appraisal (s 5A(2)(a)). The teleconferences and use in them of the customer surveys were actions not done in connection with any appraisal of the employee’s performance; they were done as part of the ordinary course of Mr Reeve’s employment and in appraising the performance of his branch.
The second decision is National Australia Bank Limited v KRDV[2012] FCA 543. In that case, the employee (the respondent) claimed to have been injured in the course of a meeting of bank employees (the AOM meeting), specifically by comments made there by her manager, Mr Daly. Cowdroy J, at [41]-[50], set out the bank’s contentions and his findings in respect thereof:
41. NAB acknowledges that the content of the AOM meeting relating to Mr Daly’s arrangements for the business of the respondent’s section and the respondent’s obligation to attend AOM meetings could not amount to administrative action taken ‘in respect of’ the respondent’s employment. However NAB submits that the exchanges which took place at the AOM meeting between Mr Daly and the respondent which specifically concerned her employment fall within the definition of administrative action taken ‘in respect of’ the respondent’s employment within the meaning of s 5A. NAB submits that both the context surrounding the meeting itself and what occurred at the meeting are relevant to a proper characterisation of the specific exchanges in question.
42. NAB relies upon Mr Daly’s observations that the respondent’s team was not showing the same signs of development as other teams; that the low level of engagement with the new initiatives was impacting upon the respondent’s team; that the respondent was not delivering on normal and basic requests as part of a business process; that the respondent’s inability to cope with the workload appeared to be due to performance as a manager and her attitude to change and that the respondent was not following the processes put in place across the teams and was not ‘on board’ for the end of financial year planning.
43. Further, NAB relies upon Mr Daly’s evidence relating to the respondent’s participation in the AOM meeting, namely that she sat with her arms folded and stared off into space for much of the meeting; that the respondent demonstrated ‘particular recalcitrance at the meeting’; that the respondent had a different view about sharing or [sic] work between the teams and did not participate appropriately in the meeting and that the respondent’s body language was such ‘that everyone knew she wasn’t going to participate or contribute. She literally disengaged from the process’; that the respondent displayed ‘passive belligerence’ and refused to accept resources.
44. NAB submits that the exchanges between Mr Daly and the respondent are to be assessed having regard to the context of the AOM meeting. It submits that Mr Daly’s concern for the performance of the respondent’s team and the respondent’s participation in the AOM meeting is a relevant consideration in determining whether NAB’s conduct, via Mr Daly, was administrative action taken ‘in respect of’ the respondent’s employment; that Mr Daly’s directions to overcome the respondent’s resistance to work sharing is not simply action ‘forming part of the everyday duties or tasks’ of NAB (see Reeve at [60]); nor is it ‘part and parcel’ of the respondent’s employment (see Reeve at [61]). Instead, the issuing of directions to the respondent by Mr Daly was made ‘in respect of’ but apart from the respondent’s ordinary duties (see Reeve [63]); was specific to the respondent’s work (see Reeve at [69]), was designed to deal with that employee as an individual in respect of his or her employment (see Reeve at [73]); and comprised the taking of a specific step under the respondent’s contract of employment (see Reeve at [74]).
45. Taking these matters into consideration, NAB submits that the directions of Mr Daly constituted in effect taking informal disciplinary action within the meaning of s 5A(2)(e) or taking a step ‘in connection therewith’; and the taking ‘in connection with’ reasonable counselling action within the meaning of s 5A(2)(e).
46. Alternatively, if the above submissions are not accepted, NAB submits that the action taken by Mr Daly nevertheless amounted to administrative action within the meaning of s 5A(1) and that the giving of the direction was specific action targeted and intended to deal with the respondent as an individual employee, unlike the circumstances which prevailed in Reeve where it was non-targeted implementation of a workplace policy and restructuring.
FINDINGS
47. The submissions of NAB must be considered within the overall context of the purpose of the AOM meeting. The meeting was not called for the purpose of discussing the respondent’s individual performance, nor that of her team. It was a meeting, as set out above, attended by eight team leaders. Such meetings were held weekly, and the purpose in holding such meetings was to plan and forecast the work load of a section and their respective teams. During the meeting, exchanges took place between those persons present relating to the amount of work which had been allocated, the resources and performance.
48. Even if during the course of the meeting statements were made by Mr Daly which could be said to have been a reasonable appraisal of the respondent’s performance, it could not be said that the AOM Meeting was something to which the exclusion in s 5A(1) had application, because it was not ‘administrative action taken ... in respect of’ the respondent’s employment.
49. The joint judgment in Reeve has drawn the distinction between matters arising in the course of an employee’s employment and action taken ‘in respect of’ the employee’s employment: see joint judgment at [60] which is reproduced above at [37]. To qualify for the exemption in s 5A(1) only conduct taken ‘in respect of’ the employment will satisfy such requirement. That action must be specific action directed to the employee’s employment.
50. For these reasons it could not be said that the AOM meeting, nor any part thereof, constituted reasonable administrative action with regard to the respondent’s performance under s 5A(2)(a); nor could it be construed as a reasonable counselling action (s 5A(2)(b)); nor could it be said to be anything reasonably done in connection with either of those actions (see s 5A(2)(e)). The purpose of the AOM meeting was nothing of that kind. Rather, it was directed solely to the performance of the company and of the teams reporting at that meeting.
(Tribunal’s emphasis added by underlining.)
I have set out the contentions and the factual findings in KRDV at some length, because they adhere very closely to those in the present proceedings. Significantly, the Court there should be understood as saying at [48] that the mere fact that matters pertaining to an employee’s employment arise in the course of a meeting does not render the meeting itself action taken in respect of that employment. In both decisions, the dominant purpose for which a relevant meeting is called appears to determine, or at least heavily influence, whether it is regarded as administrative or operational in nature (in the sense used by Gray J).
It is not readily possible to distinguish the circumstances in Reeve or KRDV from those of the meeting of 18 May 2016 now before the Tribunal. The purpose for which the latter was convened was the work programme of the laboratory, specifically the sedimentology project. That subject matter was, apparently, what consumed the attention of those present. The actions of Mr Thun – in raising his voice and striking the table – were a brief digression, if that, from the subject matter of the meeting; namely the conveying of a decision regarding the method to be used in the project. That digression cannot be regarded, on the authorities cited, as sufficient to render the meeting as action taken in respect of Mr Poignand’s employment. The meeting was not employee-specific, as required by Tracey J in Long. The meeting was unmistakably operational in nature, notwithstanding the digression.
This conclusion is reinforced by two observations. First, on Mr Thun’s evidence, his admonition was directed at two employees, not just Mr Poignand. Secondly, the digression dealing with their dissent was an unplanned development in the meeting. The employer in each of Reeve or KRDV could at least assert that some appraisal or counselling of the employee concerned was contemplated from the nature of the meeting. The meeting on 18 May 2016 had no such flavour at its outset. Nor was Mr Poignand’s particular interest in the outcome of the meeting, whereby what Mr Thun said had a different significance for him as opposed to other team members present, enough to give it that flavour. As the Tribunal noted in Horton and Australian Capital Territory [2019] AATA 953 at [125]:
It seems to me that an employee may have a very close or personal interest in an operational activity at their place of employment without that activity constituting something about them or their employment.
Comcare fares no better if, in the alternative, Mr Thun’s words are interpreted as instruction to Mr Poignand on how to perform his duties. The Full Federal Court has recently affirmed, in Lim v Comcare [2019] FCAFC 104 at [62], that such direction to an employee is operational, not administrative, action.
Accordingly, I find that the meeting of 18 May 2016 was not reasonable administrative action taken in respect of Mr Poignand’s employment.
COMCARE’S LIABILITY UNDER SECTION 19
At the hearing counsel for Mr Poignand asked the Tribunal, in the event that it found he had suffered an injury pursuant to s 14, to consider the question of Comcare’s liability to him under s 19 of the Act. That section provides:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula…
The section goes on to elaborate on the operation of the provisions of subsection (2).
The request to consider s 19 liability was couched in terms of a concern based on what counsel for Mr Poignand asserted was a tendency by Comcare to deny liability under particular provisions of the Act notwithstanding a decision of the Tribunal of general liability pursuant to s 14. Without conceding the accuracy of this assertion, the Tribunal solicited written submissions from the parties on whether it was empowered to make a determination under s 19 and, if so, whether it was desirable to do so when a s 14 determination in Mr Poignand’s favour is to be made.
Having reviewed those submissions, it is not entirely clear that a reviewable decision concerning s 19 liability is presently before the Tribunal. Mr Poignand’s claim for workers compensation dated 25 May 2016 claimed that he had suffered a Psychological injury, with a date of injury of 3 July 2014. Attached to the claim were, apparently, medical certificates and another document asserting unfitness for work for periods in 2014, 2015 and 2016. Comcare issued a determination on 28 July 2016 denying liability for major depressive disorder, recurrent episode, but making no reference to incapacity for work.
Mr Poignand’s subsequent reconsideration request ticked a box labelled Rejection of a claim under the heading WHAT DETERMINATION DO YOU WANT REVIEWED, but eschewed another box labelled Incapacity determination. When Comcare responded to this request on 28 July 2016 with its reviewable decision, it affirmed the earlier denial of liability for a psychological injury but, again, made no reference to any claim for incapacity for work.
In Lees v Comcare (1999) 56 ALD 84 the Full Federal Court considered the power of the Tribunal when conducting third tier review of a reviewable decision under s 64 of the Act. At [39] their Honours observed:
In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s.64 of the Act to review only reviewable decisions, that is, for the present purposes, second tier, or reconsideration decisions made under s.62 of the Act. Decisions under s.62 of the Act are the result of reconsideration by Comcare or a licensed authority of a determination, as defined by s.60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s.61(1)). Secondly, it is to be noted that the powers under s.43(1) of the AAT Act are powers '[for the purpose of reviewing' the reviewable decision, not powers that may be exercised at large. Further the powers and discretions that the AAT may exercise under s.43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s.62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage albeit that such powers and discretions might have been available to the determining authority at the first tier decision making stage.
In Comcare v Lofts[2013] FCA 1197 the Federal Court determined that the Tribunal had no jurisdiction to make a decision in respect to a claim for medical expenses which were not expressly or impliedly the subject of a claim resolved by the reviewable decision. As Flick J in Muir v Comcare[2016] FCA 346 noted at [34], The central question [is] the claim as made.
Counsel for Mr Poignand noted that Comcare has a statutory duty to investigate, and not merely adjudicate on, a claim for workers compensation. He then contended:
If the Respondent’s investigation discloses that the employee may be entitled to a head of compensation then it is the Respondent’s duty to raise this with the employee, investigate and determine the entitlement, whether or not the employee specifically raised this head of compensation in the original claim form.
With respect, I think this overstates the position. Comcare’s statutory duty is to ascertain the nature of the claim being brought by a worker, and to address that claim. If, on a fair construction of the claim, certain entitlements under particular provisions of the Act are not in fact asserted, Comcare has no duty to investigate whether the worker might in fact enjoy such entitlements.
While it is not entirely clear that Mr Poignand made a claim for incapacity for work, I note that it is incumbent on a decision maker to determine the scope of such claims employing a broad, generous and practical interpretation of what a worker is seeking: Abrahams v Comcare[2006] FCA 1829 at [18]. And if such a claim was indeed made, a failure by Comcare to actually consider it need not be fatal to the Tribunal’s capacity to review that claim; as Katzmann J noted in Kennedy v Comcare[2014] FCA 82 at [59]:
If an issue is before a review officer on an application for reconsideration and the officer does not deal with it expressly, (s)he might be taken to have implicitly rejected it: Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 at [26]; Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558 at [52], [56].
However, even on the assumption that the Tribunal is seized of jurisdiction to consider a s 19 claim, a further question arises as to whether, in all the circumstances, it should. I consider that it would be appropriate to do so here in only a very limited way.
Section 14(1) provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
When making determinations generally that liability under this subsection exists, the Tribunal often goes no further than to determine that liability is owed to the particular employee in respect of a particular condition and with a particular date of injury. It is in a minority of cases that the Tribunal is asked to determine a further question of entitlement to compensation under another specific provision of the Act. In the majority of cases it is assumed that, on the foundation of a finding of s 14 liability, Comcare will proceed to consider later specific applications for compensation made by the employee in question. As such, it is generally not the practice of the Tribunal to specify which of the specified outcomes of injury – death, incapacity for work or impairment – the employee has suffered from, though it is necessarily the case that he or she has suffered at least one of those outcomes as the premise on which s 14 liability is founded.
In light of the concern raised by his counsel, I consider it appropriate in this instance to specify that the injury Mr Poignand suffered on 18 May 2016 resulted in incapacity for work. That finding sits comfortably with the evidence that he went off work immediately after the incident on 18 May 2016 and was, apparently, unfit for work for the following five months or so.
His counsel further requested that I indicate in my determination the periods of incapacity resulting from the injury, at least at an indicative level. I do not consider that to be appropriate, largely on the basis of an absence of submissions on this question. In particular, I note that contentions on the appropriate calculation of the period of Mr Poignand’s incapacity following the incident on 18 May 2016 were not included in:
(a)either party’s statement of facts issues and contentions;
(b)any direction hearing prior to the substantive hearing;
(c)any submissions made during the hearing; or
(d)either party’s written submissions following the hearing on the appropriateness of making a determination under s 19.

The Tribunal might, of course, analyse the T-documents and other evidence already tendered to arrive at an assessment of this matter, but the accuracy of such an exercise must be doubtful where the available documents are unclear (as, on a cursory examination, is the case here) and in the absence of contextual submissions about their interpretation (for example, as to whether any individual period of incapacity was a result of something other than the injury).
Another course of action is that made available by s 43(1)(c)(ii), namely remittal of the matter to Comcare on the basis that the Tribunal has determined Mr Poignand suffered an injury resulting in incapacity for work. However, in light of the uncertainty as to whether a s 19 claim has actually been made here, I do not propose to adopt this course of action. Obviously, Mr Poignand can make such a claim at any time.
COSTS
Section 67(8) of the Act provides that the Tribunal may make an order for costs against a respondent where it varies a reviewable decision in a manner favourable to a claimant. Such a variation is to be made by the Tribunal here. However, Mr Poignand has been only partly successful in this litigation, having failed to satisfy the Tribunal that the “injury” of 8 July 2014 is compensable.
I glean from the T-documents that the periods of incapacity for work resulting from the 18 May 2016 injury were somewhat greater than those resulting from the 8 July 2014 “injury”. On that basis I conclude that he has been substantially but not wholly successful in these proceedings. Accordingly I will make an order that Comcare pay 75% of Mr Poignand’s costs of the proceedings (including the interlocutory proceedings) as agreed or assessed in accordance with the usual arrangements.
CONCLUSION
Mr Poignand sustained potentially compensable injuries on 8 July 2014 and 18 May 2016 pursuant to s 5A of the Act. Those injuries arose in the course of his employment and were substantially contributed to by that employment. The injury in 2014 is not compensable because, being reasonable administrative action taken in respect of his employment, it is caught by the exemption to s 5A. The injury in 2016, conversely, is compensable because it is not the outcome of reasonable administrative action taken in respect of his employment.
The reviewable decision of 14 September 2016 is varied, to the extent that Mr Poignand is entitled to compensation pursuant to s 14 of the Act for aggravation of major depression, with a date of injury of 18 May 2016, being an injury which resulted in incapacity for work. The Tribunal directs that Comcare pay 75% of Mr Poignand’s costs of the proceedings (including the interlocutory proceedings) as agreed or assessed in accordance with the Tribunal’s Practice Direction on Taxation of Costs.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.

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Associate
Dated: 16 August 2019

Date(s) of hearing: 28-31 May 2019

Date final submissions received: 16 July 2019

Counsel for Mr Poignand: Mr A Anforth

Solicitors for Mr Poignand: Elringtons Lawyers

Counsel for Comcare: Ms P Bindon

Solicitors for Comcare: McInnes Wilson Lawyers

Date(s) of hearing:	28-31 May 2019
Date final submissions received:	16 July 2019
Counsel for Mr Poignand:	Mr A Anforth
Solicitors for Mr Poignand:	Elringtons Lawyers
Counsel for Comcare:	Ms P Bindon
Solicitors for Comcare:	McInnes Wilson Lawyers