Powell and Comcare (Compensation)

[2019] AATA 2715

Powell and Comcare (Compensation) [2019] AATA 2715 (19 August 2019)

Division:GENERAL DIVISION

File Number(s):      2017/4844

Re:Jennifer Powell

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:19 August 2019

Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975. 

........................................................................

Senior Member Linda Kirk

Catchwords

WORKERS COMPENSATION – psychological injury - whether the Applicant suffers an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in s 4 of the Safety, Rehabilitation and Compensation Act – Whether the ailment or aggravation of an ailment was contributed to, to a significant degree, by her employment - whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a reasonable manner with respect to the Applicant’s employment – whether the Respondent is liable to pay compensation – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988

Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Drenth v Comcare (2012) 128 ALD 1
Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42
Lim v Comcare [2017] FCAFC 64
National Australia Bank Limited v KRDV (2012) 204 FCR 436
Rutledge and Comcare [2011] AATA 865
Von Stieglitz and Comcare [2010] AATA 263

Thompson and Comcare [2012] AATA 752

REASONS FOR DECISION

Senior Member Linda Kirk

19 August 2019

INTRODUCTION

1. Ms Jennifer Powell (‘the Applicant’) was born in 1962.[1]  She commenced employment with the Australian Federal Police (‘AFP’) on 15 October 2013.[2]

   [1] T3.

   [2] T3.

2. On 11 January 2017, the Applicant lodged a claim for workers' compensation for 'psychosocial injury'. The Applicant reported in her claim form that she first noticed her symptoms on 22 June 2016 at 4:30 pm.[3]

   [3] T3.

3. On 3 February 2017, the Applicant resubmitted her claim for workers' compensation that included an attached statement in support of her claim.[4]

   [4] T4 and T4.1.

4. On 7 April 2017 Comcare (‘the Respondent’) denied liability under s 14 of the Safety, Rehabilitation and Compensation Act1988 (‘the SRC Act’) for the claimed condition on the basis that the Applicant's ailment arose because of her failure to obtain promotion and the decision to deem her not competent in relation a training course, with these actions being reasonable administrative actions taken in a reasonable manner by the AFP.[5]

   [5] T23

5. On 19 June 2017, the Respondent affirmed the determination of 7 April 2017 on the basis that the reasonable administrative action exclusion applied, and that the Applicant would not have otherwise sustained the ailment without the reasonable administrative action associated with the Applicant's failure to obtain a promotion (‘the Reviewable Decision’).[6]

   [6] T1.2

6. On 15 June 2017, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decision.[7]

   [7] T2.

7. The review application was heard by the Tribunal at a hearing in Canberra on 4 and 5 March and 3 June 2019. The following witnesses gave oral evidence at the hearing:

   ·The Applicant;

   ·Dr Catherine Oelrichs;

   ·Superintendent Tom Hester;

   ·Mr Andrew McDermott;

   ·Mr Phil Winter; and

   ·Ms Jessica Sneesby.

8. The following documents were before the Tribunal:

   ·Applicant’s statement (Exhibit A1);

   ·Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’) (Exhibit A2);

   ·Email correspondence dated 21 June 2016 (x2), 20 June 2016 (x2) and 2 June 2016 (Exhibit A3);

   ·Summonsed records from Dr Sparks and documents from Phillip Medical and Dental Centre (Exhibit R1);

   ·Section 71 documents lodged 4 December 2017, supplementary section 71 documents lodged 4 December 2017 and further Section 71 documents lodged 26 April 2018 (Exhibit R2);

   ·Section 37 T-documents (‘T-documents’) lodged 5 October 2017, supplementary T-documents lodged 21 November 2017 (protected) and further supplementary T-documents lodged 6 November 2018 (Exhibit R3);

   ·Extracts from the AFP Enterprise Agreement from the time period in question (2012-2016) (Exhibit R4);

   ·Email correspondence from Ms Jennifer Powell dated 2 June 2016 (Exhibit R5);

   ·Medical report of Dr Catherine Oelrichs dated 22 August 2018 (Exhibit R6);

   ·Witness statement of Mr Andrew Leslie McDermott dated 30 May 2018 (Exhibit R7);

   ·Document titled ‘AFP Intelligence Analyst Advancement Arrangements Capability/Behavioural Assessment for Analyst Advancement Band 6.3 to Band 7.2’ signed and dated 10 June 2016 (Exhibit R8);

   ·Witness statement of Superintendent Thomas Hester dated 5 February 2018 (Exhibit R9);

   ·Supplementary witness statement of Superintendent Thomas Hester dated 22 August 2018 (Exhibit R10); and

   ·Diary entries of Ms Jessica Sneesby dated 18 August, 19 August, 20 August and 21 August, filed 3 June 2019 (Exhibit R11).

   LEGISLATIVE FRAMEWORK

9. The right to compensation for an employee under the SRC Act is conferred by section 14(1) which provides that 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.

   (emphasis added)

10. “Injury” is defined in s 5A of the SRC Act:

    “(1)      …

    (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.”

11. A “disease” is defined in s 5B of the SRC Act to mean, so far as this case is concerned:

    “(1)      …

    (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.”

12. An “ailment” is defined in s 4 of the SRC Act to mean:

    “… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

    ISSUES FOR DETERMINATION

13. The issue for determination is whether the Applicant is entitled to compensation for an ‘injury’ under s 14 of the SRC Act and specifically:

    a)Whether the Applicant suffers an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in s 4 of the SRC Act;

    b)Whether this was contributed to, to a significant degree, by her employment with the AFP, such that she has a ‘disease’ under s 5B(1) of the SRC Act, which may therefore meet the definition of ‘injury’ in s 5A(1)(a), and;

    c)Whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a reasonable manner with respect to the Applicant’s employment, such that it is excluded from the definition of ‘injury’ in s 5A(1), and;

    d)Whether the Respondent is liable to pay compensation for an injury under s 14 of the SRC Act.

    EVIDENCE BEFORE THE TRIBUNAL

    Applicant’s employment at the AFP

14. The Applicant commenced work as a permanent employment with the AFP on 15 October 2013 as a policy officer/analyst at Band 6.3 in National Security Policy.[8] On 23 April 2015, she transferred at level to join National Security Intelligence in the role of Intelligence Analyst in the Intelligence Collection and Evaluation (ICE) Team.[9] The Applicant’s transfer was not via a competitive merit selection process. She told the Tribunal that there was a local merit selection process involving interviews with applicants after which she was invited to join the area, and this was endorsed by AFP Human Resources (‘HR’).

    [8] Exhibit A2, [22].

    [9] T9.2; Exhibit A2, [23]-[25].

15. The Applicant’s then Team Leader, Mr Andrew McDermott, explained to the Tribunal that the Dissemination or ICE Team fell under the Strategic Intelligence Area.  It was responsible for disseminating all product both internally and externally to and from the AFP.  Requests and inquiries would come from the wider intelligence community through the Team.  The work of Team members was not that of a traditional analyst.[10]  It could be described as ‘administrative, facilitating and dissemination’ and then ‘managing upwards of … leadership relationships.’[11]  Ms Jessica Sneesby described the ICE analyst role as being responsible for ‘high level collection and collation of information from internal and external sources, the analysis of that data and information and identifying … a picture of crime, and that information, that analysis leads to a decision; is sent to the decision makers to … influence how they … direct their investigation.’ The role is a ‘support function’ in that they disseminate intelligence that has already been produced.[12]

    [10] Transcript, 4 March 2019, 124.

    [11] Transcript, 4 March 2019, 125.

    [12] Transcript, 3 June 2019, 5.

16. In August 2015, as part of an annual Performance Development Appraisal (‘PDA’) process, the Applicant commenced a development capability arrangement with Mr McDermott, in preparation for advancement through the Intelligence Analyst Advancement Arrangements (‘the Advancement Arrangements’).[13]  In November 2015, the Applicant commenced a development pathway for a 10 month period,[14] which involved her commencing related tertiary studies and undergoing a Top Secret Positive Vetting security clearance process.[15]  The purpose of undertaking these activities was to address what the Applicant had identified were gaps in her skill set that she needed to address in order to perform at an intelligence analyst Band 7 level.

    [13] T22.6; Exhibit A2, [32].

    [14] T22.5, Exhibit R7, [4].

    [15] Exhibit A2, [33].

17. Superintendent Tom Hester told the Tribunal that a Band 7 analyst ‘is the pinnacle of the analyst … [t]hey are those that would be the most responsible and called upon for serious level investigations.’[16] They need ‘to be able to be placed against any AFP national security or investigations priority and be able to work independently and supporting and driving and directing those investigations.’[17] A Band 7 analyst needs ‘opportunity and experience working with those key roles in developing intelligence, producing product, writing intelligence papers and really being capable of delivering what the organisation needs …’.[18]  They ‘are paid at the highest spectrum for an intel analyst in the AFP, and they need to have the highest … and the most broad skillset ...’[19]

    [16] Transcript, 4 March 2019, 177.

    [17] Transcript, 4 March 2019, 182.

    [18] Transcript, 4 March 2019, 182.

    [19] Transcript, 4 March 2019, 199-200.

    Restructure of Intelligence portfolio

18. In February 2016, the Intelligence portfolio underwent comprehensive restructure which included the realignment of all positions including at management and coordinator levels. The Applicant expressed concerns about her future role and sought additional information about the impact of the restructure on her position.  The Strategic Intelligence team was removed in the restructure and the ICE function disbanded.[20] The Applicant was reallocated to the Australian and New Zealand Counter Terrorism Committee Team on the proposed organisational chart, but she did not move from her existing position.[21]

    [20] Transcript, 4 March 2019, 128.

    [21] T4.2; Exhibit A2, [38]-[41].

19. On 11 March 2016, the Applicant consulted with her general practitioner about 'stresses with restructure at work' related to the uncertainty surrounding the restructure and her future position and work role.[22]

    [22] Summonsed records, 36; Exhibit A2, [44].

20. From March to May 2016 the Applicant acted as a Team Leader in the ‘Vault’, an area where top secret information is handled.[23]

    [23] T11.

21. The Applicant told the Tribunal that between February and May 2016 she was focused on the impact of the restructure and the movement of people and positions, and wondering whether she would continue to have a job.

    Analyst advancement process

22. In May 2016, the Applicant commenced the finalisation of her PDA with her Team Leader, Mr McDermott, and began a review preliminary to the advancement process.[24]  The Applicant told the Tribunal that on 14 or 15 May 2016 she approached her then Coordinator, Mr Phil Winter, and indicated that she was planning to leave his area, but before doing so she wished to submit her advancement request to Band 7.2, and she wanted the assessment process to be done through her exit PDA.  He agreed that she should do this, and she confirmed with HR that it was appropriate for the assessment process to be done before she left the area.  The Applicant also sought advice from HR as to whether the Advancement Arrangements might be removed from the new EA, and queried how this would affect her ability to advance.[25]

    [24] Exhibit A2, [49].

    [25] s71, 60.

23. Under the Advancement Arrangements, the advancement process is initiated by the applicant for advancement who, together with their Team Leader, identifies the peers to provide Capability/Behavioural Assessment feedback on them.[26]  Requests are then sent to these peers to provide feedback by way of completion of a survey allowing them to comment on the applicant’s skills and competencies. This peer review process for the Applicant commenced on 2 June 2016 after she indicated to Mr McDermott that she wished to initiate the advancement process. She identified the peers who were then sent the survey by email and asked to provide their responses to Mr McDermott by 10 June 2016.[27]  Once the peer review feedback is received by the Team Leader, a recommendation is made by them as to whether the applicant should advance.  This recommendation is then sent to the Coordinator who has the discretion to determine whether or not the advancement is approved.[28] 

    [26] T22.6, [7]; Transcript, 4 March 2019, 126.

    [27] Transcript, 4 March 2019, 126-127.

    [28] Transcript, 3 March 2019, 46.

24. The Applicant explained to the Tribunal that there are two parts to the analyst advancement process.  It is not just about advancing to the next level; it is also about achieving the outline of a pathway that helps the person achieve their career objectives.[29]  The preliminary stage is an input to the analyst from their environment, and an identification by their Team Leader and Coordinators of any gaps in the analyst’s skill set so that these can be addressed.  It is multidimensional and is not as clear cut as applying for promotion.[30]

    [29] Transcript, 3 March 2019, 43 and 109.

    [30] Transcript, 3 March 2019, 43.

25. Mr McDermott told the Tribunal that once he received the submissions from the peer reviews he compiled and assessed them, and then on 27 June 2016 he put a recommendation to the Coordinator in relation to the Applicant’s request for advancement.[31]  He understood that he did not have the final call on the decision as to whether the Applicant would advance.[32]  Superintendent Hester confirmed in his oral evidence that it is the Coordinator who is responsible for accepting or rejecting an advancement request or further clarifying whether or not it is to proceed. If it does proceed past the Coordinator, the manager or commander of intelligence operations has the final approval of the advancement.  At this point it then becomes an administrative process where HR and the pay team give effect to the advancement.[33] 

    [31] Transcript, 4 March 2019, 128.

    [32] Transcript, 4 March 2019, 127.

    [33] Transcript, 4 March 2019, 177.

26. Mr McDermott explained to the Tribunal that the advancement process from Band 6 to Band 7 is a ‘soft barrier’ advancement, in that it occurs without going through the traditional process of a competitive merit-based selection process or ‘hard barrier’ advancement.[34]  Once a member has reached the top level of Band 6 (Band 6.3) they are eligible to access the advancement process in the ‘soft barrier’ way to a Band 7.[35]

    [34] Transcript, 4 March 2019, 145-149.

    [35] Transcript, 4 March 2019, 147; see also 176 (Superintendent Hester).

27. The Applicant’s Coordinator, Mr Winter, told the Tribunal that there were no restrictions to accessing the advancement process, and everyone was welcome and encouraged ‘to have a crack at the process’.  He said that he recalls he was supportive of the Applicant applying for advancement.  He did however have some concerns that he ‘could see no evidence that [the Applicant] had undergone formal intelligence training or had skills in the priority areas of counter-terrorism, transnational crime, all those sort of areas where an analyst would be expected to write and make judgments …’.[36]  He was ‘guarded’ about what he said to the Applicant, and told her she would need to produce evidence of her background and skills.[37] He reflected his concerns about the Applicant’s minimal intelligence training background and lack of ‘deep intelligence knowledge to progress and lead other intelligence teams’ in his answers to the peer review survey with respect to the Applicant.[38]

    [36] Transcript, 4 March 2019, 156.

    [37] Transcript, 4 March 2019, 156

    [38] Transcript, 4 March 2019, 160.

    Transfer to Fraud and Anti-Corruption Intelligence Team

28. In May 2016, the Applicant approached Superintendent Hester, and requested an opportunity to work in his Team. The Applicant told the Tribunal that she said to Superintendent Hester that she wanted to gain experience working on and capturing knowledge from databases. Her preference was to join the Proceeds of Crime area, but Superintendent Hester thought it better that she be assigned to the Fraud and Financial Crime area because her background was a better fit for this area.[39] Superintendent Hester spoke with Mr Winter, the Applicant's then Coordinator, and he agreed to release the Applicant and her position number to Superintendent Hester's portfolio.[40] During cross-examination, the Applicant agreed that she did not tell Superintendent Hester that she had commenced an advancement process.[41]

    [39] Transcript, 4 March 2019, 106.

    [40] T8; Exhibit R9 [10]; Transcript, 4 March 2019, 106.

    [41] Transcript, 3 March 2019, 43.

29. Superintendent Hester told the Tribunal that the Applicant approached him and asked whether there was an opportunity for her to work in one of the Operations Intelligence teams as she wanted to gain experience in the area.  He was aware that she worked in the ICE team and that her background was not within AFP intelligence, and that she had come to intelligence from the policy area.[42]

    [42] Transcript, 4 March 2019, 178.

30. In his Statement, Superintendent Hester stated that he arranged for the Applicant to be embedded in the Fraud and Anti-Corruption (‘FAC’) intelligence cell to learn and experience intelligence work supporting a slower paced operation team which would allow for the easiest transition and "learning on the job".[43]  He told the Tribunal that the FAC team had a bit slower pace but was ‘not necessarily less challenging’.  Its ‘slower dynamic’ provided the ability to learn and to take on new skills than in a more demanding area.[44]

    [43] T8.

    [44] Transcript, 4 March 2019, 178.

1. On 16 June 2016, the Applicant moved to the FAC Intelligence Team within Operations Intelligence. This was the first time that the Applicant worked directly in an operational support role within the Intelligence portfolio.[45] The Applicant told the Tribunal that before she joined Superintendent Hester’s team she had not had the opportunity to write intelligence product.  She had only done so in a training environment.  She felt this was a gap in her skill set that she wanted to address. [46]

   [45] Exhibit R9, [11].

   [46] Transcript, 4 March 2019, 30.

2. Ms Sneesby, the Applicant’s new Team Leader, told the Tribunal that when the Applicant joined FAC she assumed she was an intelligence analyst, and that she had some knowledge or ability to walk into the role and ‘pick it up and run with it.’[47]

   [47] Transcript, 3 June 2019, 6.

3. Superintendent Hester explained to the Tribunal that once the Applicant transferred to his team she became an employee under his command and supported teams he was responsible for.  Therefore, any application for advancement by the Applicant or any other member to Band 7 was his responsibility as he had to ensure that a person who occupied a Band 7 position had the correct skills and ability.[48]

   [48] Transcript, 4 March 2019, 180.

   Meeting to discuss advancement process – 22 June 2016

4. After joining FAC, the Applicant sought to arrange a meeting with Superintendent Hester to discuss the process for her advancement to Band 7.  She told the Tribunal that she contacted Superintendent Hester to arrange a meeting because her previous Coordinator, Mr Winter, advised her to do so.[49]  She sent out a calendar invite to arrange the meeting with Superintendent Hester.  Under cross-examination, the Applicant was asked whether she had approached Ms Sneesby to discuss the fact she was seeking to advance to Band 7 and she did not require her to be part of the process. The Applicant agreed that she told Ms Sneesby she had commenced an advancement process and, as a courtesy, invited her to attend the meeting with her and Superintendent Hester.[50]

   [49] Transcript, 3 March 2019, 47, 48.

   [50] Transcript, 4 March 2019, 49-50.

5. On 22 June 2016 at 11.10am the Applicant met with Superintendent Hester and Ms Sneesby to discuss her advancement from Band 6.3 to Band 7.2.[51] At this meeting, Superintendent Hester advised the Applicant that:

   ·he had requested that any advancement request be managed by him rather than her previous Coordinator consistent with s 13 of the Advancement Arrangements;[52]

   ·any advancement request had to be assessed against the Applicant's ability to perform as an Intelligence Analyst in her current role, as opposed to an assessment of the Applicant's ability to perform her previous role;[53]

   ·he said he would not be able to assess any request until he had received the formal application and attachments, but when pressed by the Applicant for a preliminary view, he informed her that while he thought she was a talented employee and had a lot of potential, she was essentially new to providing operational support and needed more time and opportunities to develop her skills. On this basis, Superintendent Hester indicated that he was not likely to support her advancement based on what he knew at the time;[54]

   ·there were future training opportunities available that would assist the Applicant in developing her intelligence skills and, while the Applicant had previously been unsuccessful in an application for the Police Intelligence Development Program (PIDP), if participation in this program was required for her development, he would ensure that she had a place on an upcoming course;[55] and

   ·he was not discouraging the Applicant from submitting an advancement request.[56]

   [51] T8; Exhibit A2, [64]-[67].

   [52] Exhibit R9, [20].

   [53]Ibid.

   [54] Exhibit R9, [21].

   [55] Exhibit R9, [22].

   [56] Exhibit R9, [22]; Transcript 4 March 2019, 182.

6. In his statement, Superintendent Hester reported that at the conclusion of the meeting it was understood that the Applicant would submit her advancement request, and he would assess it on its merits when it was received.[57]  He told the Tribunal that he did not indicate that he had a final view in relation to her application, but he did express some reservations.  He said to the Applicant that he ‘would view it under the merits of what was submitted … along with her current work performance.’[58]

   [57] Exhibit R9, [23],

   [58] Transcript, 4 March 2019, 181-182.

7. Ms Sneesby told the Tribunal that Superintendent Hester did not tell the Applicant that her advancement request would be opposed. He said ‘he’d assess it based on the information he had in the review’.[59]  She agreed that the door to advancement ‘wasn’t shut’.[60]

   [59] Transcript, 3 June 2019, 7.

   [60] Transcript, 3 June 2019, 8

8. During cross-examination, the Applicant agreed that Superintendent Hester advised her during the meeting that he needed to assess her ability to perform as an analyst in her current role and not in her former role.  She also agreed that he told her he was of the view, based on his understanding of her skills and experience, that at that point she lacked operational experience and appropriate intelligence training.[61] She did not disagree that Superintendent Hester said that he had concerns because she came from a policy background and had not previously produced intelligence product.  She denied that at the meeting she insisted on him providing her with a preliminary view about his attitude to her advancement request.[62]  She agreed that Superintendent Hester told her that he would wait until he had received and reviewed all the documentation before reaching a decision and he would give her a fair assessment.[63] The Applicant accepted that Superintendent Hester gave her some indication as to what deficiencies he considered existed, but ‘did not close the door to any concluded outcome as to what would be the result of [her] advancement process.’[64]

   [61] Transcript, 3 March 2019, 51.

   [62] Transcript, 3 March 2019, 53.

   [63] Transcript, 3 March 2019, 53.

   [64] Transcript, 3 March 2019, 55, [43]-[45].

9. The Applicant told the Tribunal that at the meeting she felt not that she would not be assessed for advancement, but that she was not entitled to put forward an assessment to be assessed.[65]  She however agreed that Superintendent Hester in no way indicated that she was prevented from continuing with the advancement process.[66]   She said that he did though ‘indicate to [her] that he did not support [her] advancement, but that he would assess it fairly.’[67]

   [65] Transcript, 3 March 2019, 64.

   [66] Transcript, 3 March 2019, 64

   [67] Transcript, 3 March 2019, 65.

   Contact with HR, AFPA and Mr McDermott after 22 June meeting

10. On 23 June 2016, the Applicant contacted HR about Superintendent Hester's decision to be the person assessing her eligibility to advance.[68]  She told the Tribunal that the advice she had previously received from HR was that the advancement process should be done on her exit PDA with her previous Coordinator, Mr Winter.  She was advised by HR that it is ‘unorthodox’ for the new Coordinator to take over the process, but if the Coordinators agree there should not be any problem.[69]

    [68] s 71, 123.

    [69] Transcript, 3 March 2019, 63.

11. On 27 June 2016, the Applicant contacted the Australian Federal Police Association (‘AFPA’) in relation to her meeting with Superintendent Hester on 22 June 2016.[70]  She told the Tribunal that she raised with AFPA her concerns that Superintendent Hester did not have any knowledge of her or her working history, yet he was the person who had responsibility for making a decision on her advancement and was ‘taking over’ from Mr Winter.[71] She thought it was ‘pretty presumptuous’ that he would be considering her advancement request.  The AFPA told her that it doesn’t really matter who conducts the review as the policy needs to be followed by the Coordinator.[72]  During cross-examination, the Applicant agreed that it was Superintendent Hester’s responsibility to assess her advancement request once she came within his portfolio.[73]

    [70] s 71 documents, 123; Exhibit A2, [72].

    [71] Transcript, 3 March 2019,40 and 73.

    [72] Transcript, 3 March 2019, 77.

    [73] Transcript, 3 March 2019, 73.

12. The Applicant told the Tribunal that after the 22 June 2016 meeting, she spoke to Mr McDermott and told him that she did not think Superintendent Hester believes that her qualifications are adequate to achieve Band 7 in his portfolio.[74]  She said to Mr McDermott that perhaps she should wait to seek advancement because Superintendent Hester did not seem to be supportive.  Mr McDermott said to her that he believed she was entitled to have the assessment as she was working at Band 7, and he agreed that Superintendent Hester had to follow the policy.[75]

    [74] Transcript, 3 March 2019, 61.

    [75] Transcript, 3 March 2019, 77.

    Submission of advancement request

13. At 3.30pm on 27 June 2016 the Applicant’s advancement request and supporting documentation was submitted by Mr McDermott to Superintendent Hester.[76] Mr McDermott recommended that the Applicant progress to Band 7.2.[77]  The supporting documentation included the Capability/Behavioural Assessments completed by Mr McDermott, Mr Tony Bill, Mr Winter and the Applicant's peers.[78]  The assessments were all by persons that had previously worked with the Applicant.  Most of the Applicant's scores in the 'Sometimes' and 'Rarely' range were to do with criteria 3 (‘cultivates productive working relationships’) and criteria 5 (‘communicates with influence’).

    [76] s 71 documents, 324; T8, 52.

    [77] T8, 52.

    [78] T8 52.

    Request for further information

14. At 4.50pm on 30 June 2016, Superintendent Hester emailed Mr McDermott seeking further information about his assessment of the demonstration by the Applicant of Intelligence Analyst skills.[79]  One of the concerns Superintendent Hester identified was the indication from Mr McDermott that the Applicant had limited, if any, opportunity to perform an Analyst role.[80] He requested further information from Mr McDermott in relation to the Applicant’s demonstrated experience in the areas that were more aligned with the capabilities of an Intelligence Analyst.[81]  In particular he wanted examples of where the Applicant had to apply analytic skills to a particular task.  He told the Tribunal that while the Applicant ‘had plenty of talents … she lacked the experience and opportunity to provide a lot of what is required of an analyst.’[82]

    [79] s 71 documents, 324; Exhibit R7, [7].

    [80] T22.1, 327.

    [81] Transcript, 4 March 2019,60-61.

    [82] Transcript, 4 March 2019,183.

15. During cross-examination, the Applicant accepted that Superintendent Hester was attempting to understand more about her background to enable him to fairly assess her advancement request.[83]

    [83] Transcript, 3 March 2019, 62.

16. Mr McDermott told the Tribunal that after receiving the request for further information from Superintendent Hester, he discussed it with the Applicant and they worked together to compile a response and to ensure that all the points were addressed.[84] This was completed and sent to Superintendent Hester for his consideration upon his return from leave.  He told the Tribunal that he did not have any expectations in the process that Superintendent Hester and he would have a meeting to discuss his assessment, and that he considered the information he provided in response to his request was sufficient.[85]

    [84] Transcript, 4 March 2019,130-131.

    [85] Transcript, 4 March 2019,133.

17. Between 1 July 2016 and 24 July 2016, Superintendent Hester was on planned recreation leave.[86]

    [86] T8.

18. On 19 July 2016, Mr McDermott responded to Superintendent Hester's request for further information.[87]

    [87] s 71 documents, 324; Exhibit R7, [7].

    Eligibility of Applicant for advancement

19. Superintendent Hester explained to the Tribunal that he considered it necessary to seek clarification from HR as to the Applicant’s eligibility to advance to a Band 7.  A person who wins an analyst-based promotion to Band 6 is eligible to then move from a soft-bar Band 6 to a Band 7 through the advancement process. His understanding is that a person such as the Applicant who did not achieve their position following a merit-based selection process does not have the same ability to advance via the soft-bar process.[88]   Ms Sneesby told the Tribunal there was a need to seek advice from HR as there was doubt surrounding the ‘legitimacy’ of the Applicant’s advancement request.[89]  If this had not been clarified, the Applicant would not have been able to advance to a Band 7.2 even if the advancement request were approved.[90]

    [88] Transcript, 4 March 2019,184.

    [89] Transcript, 3 June 2019, 9.

    [90] Transcript, 3 June 2019, 9.

20. On 26 August 2016, Superintendent Hester met with HR to seek advice about whether the Applicant was eligible for advancement. At this meeting, Superintendent Hester queried whether the Advancement Arrangements applied to the Applicant as she did not obtain a position in Intelligence 'by merit' as she had transferred to the section. He was advised by HR that it would be acceptable for him to consider the Applicant's request for advancement under the Advancement Arrangements.[91]  Superintendent Hester told the Tribunal that HR advised him that while Applicant was technically not eligible to advance to Band 7, ‘it would be against the spirit of her being in that position for a number of years’ and so there was the ability to allow her to do so.[92]  He explained that he needed clarification on the Applicant’s eligibility so that he could proceed with confidence to develop an advancement pathway without being concerned it would be found by HR to be contrary to the rules.[93]

    [91] Exhibit R9, [27]; s 71 documents, 331.

    [92] Transcript, 4 March 2019,185.

    [93] Transcript, 3 March 2019,187.

21. Superintendent Hester told the Tribunal that the Applicant’s advancement request took ‘a little longer’ than four weeks to determine due to the clarification required as to her eligibility and the time required to develop a pathway for how her skills could be built to give her a way forward to advance to Band 7.[94]  He considers it his responsibility to find a pathway to help develop analysts who had not had the necessary experience or opportunity to meet the requisites of a Band 7.[95]

    [94] Transcript, 3 March 2019,186.

    [95] Transcript, 3 March 2019,188.

22. During cross-examination, the Applicant was asked whether it was reasonable that Superintendent Hester took steps to satisfy himself with HR as to her eligibility to advance.  She agreed it was ‘[u]tterly reasonable’ and that it was the timing/delay of the process, not what he did, that she had concerns about.[96]

    [96] Transcript, 3 March 2019,89, 91.

    Concerns about delay in the advancement process

23. During August 2016, the Applicant had several conversations with Ms Sneesby and raised concerns about the delay in the outcome of the advancement process.[97]  The Applicant requested an appointment with Superintendent Hester to discuss this delay. Ms Sneesby indicated that she would speak to Superintendent Hester about the Applicant's concerns at the next available opportunity.[98]  Ms Sneesby told the Tribunal that she believes that the Applicant was ‘frustrated that it was taking so long’ and she thought that the Applicant ‘felt that it was going to be rejected.’[99]

    [97] Exhibit A2, [80]; s 71 documents, 123; Transcript, 3 March 2019,62.

    [98] T13.1; Transcript, 3 March 2019, 69.

    [99] Transcript, 3 June 2019, 11.

24. The Applicant told the Tribunal that she raised her concerns about the delay with Ms Sneesby particularly because she wanted to know when Superintendent Hester ‘was going to conduct the meeting between the analyst, the recommending team leader and himself as the reviewer.’  She understands that this meeting is ‘usually scheduled to happen about two or three weeks after’ the advancement request is submitted.[100]  This meeting is part of the ‘natural justice’ of the advancement process in that the reviewer states the reasons why he or she is not going to advance the analyst, identifies the areas the analyst needs to focus on, and outlines the ways they can be assisted to do so.[101]  The meeting provides an opportunity for a ‘right of reply’ by the analyst and their team leader.[102] She felt that Superintendent Hester did not hold the meeting because he didn’t think she was ‘important enough’ for him to do so.[103]

    [100] Transcript, 3 March 2019, 68.

    [101] Transcript, 3 March 2019, 74.

    [102] Transcript, 3 March 2019, 77.

    [103] Transcript, 3 March 2019, 110.

25. Superintendent Hester was asked about his understanding of the meeting required under the Advancement Arrangements.  He told the Tribunal that the meeting is for the purposes of providing feedback in relation to why the analyst’s application for advancement was not successful, as well as to outline the steps that will be taken to provide them with opportunities for development to facilitate them being successful in a future application for advancement.[104]

    [104] Transcript, 4 March 2019, 205.

26. On 15 August 2016, the Applicant contacted Mr McDermott to follow up on the advancement process.[105] On 17 August 2016 Mr McDermott emailed Superintendent Hester, who replied on 19 August 2016.[106]  Superintendent Hester wrote:

    I am hoping to have everything completed by Wednesday or Friday next week at the latest.  On my return from leave I’ve been involved in several items that have taken my time away in completing this, my apologies to Jenny.  I’ll get it sorted and documented soon.

    [105] Exhibit A2, [81].

    [106] s 71, 324; Exhibit R7, [7].

27. On 18 August 2016, the Applicant again followed up with Ms Sneesby about her  advancement request. During this conversation, the Applicant indicated that she was 'worried and upset' about the length of time it was taking, and stated that in her view Superintendent Hester was acting outside the policy.[107] The Applicant's notes record that Ms Sneesby suggested she 'take some leave'.[108]

    [107] Transcript, 3 March 2019, 80.

    [108] s 71 documents, 124.

28. On 19 August 2016, the Applicant contacted HR seeking advice about whether the Advancement Arrangements might be removed from the new EA, and queried how this would affect her ability to advance if her current request was rejected by Superintendent Hester.[109]

    [109] s 71 documents, 61.

29. On 22 August 2016, the Applicant was advised by Ms Sneesby that Superintendent Hester was assessing whether she was eligible to advance through the advancement process.  The Applicant’s notes record that she was upset by the 'delay and lack of communication' in relation to the process, stating that it was making her 'increasingly anxious' and Ms Sneesby suggested she 'should take some time off'.[110]

    [110] s 71 documents,124.

30. The Applicant told the Tribunal that at this point she was worried and upset ‘knowing that most advancement processes usually have an outcome within 10 days.’[111] When questioned about this, she said that she meant that the meeting between the analyst and the reviewer is usually held in the first two to four weeks.  She agreed that her advancement process was ‘a little more complicated’ that the average advancement request.[112]

    [111] Transcript, 3 March 2019, 81.

    [112] Transcript, 3 March 2019, 82.

31. The Applicant told the Tribunal that she said to Ms Sneesby that she thought she was being treated differently and that she felt like she might have done something wrong in requesting the assessment.[113]  She ‘didn’t feel well’ and there were behaviours in the workplace that suggested she was ‘being excluded and isolated’.  She ‘couldn’t work out if the behaviours in the workplace were happening so as to inform the assessment, so there would be a lack of evidence to inform that assessment, and [she] wanted that assessment to be finished.’[114]

    [113] Transcript, 3 March 2019, 83 and 109.

    [114] Transcript, 3 March 2019, 83.

32. At 11.37am on 23 August 2016, the Applicant advised Ms Sneesby that she was meeting with AFPA next week, and requested that Ms Sneesby send through notes of the 22 June 2016 meeting with Superintendent Hester.[115]  At 9.30am on 24 August 2016 Ms Sneesby sent the Applicant and AFPA a copy of her notes from the meeting.[116]

    [115] T13.2,131.

    [116] T13.2,132.

1. On 25 August 2016, the Applicant sought intervention from HR and AFP Industrial Relations (‘IR’) in relation to the delay in the advancement process.[117]

   [117] T22.1.

2. On 28 August 2016, the Applicant met with AFPA about the delay in her request for advancement.  She was told that AFPA had been in contact with Superintendent Hester about her advancement request and he had been told to ‘move it along’.[118]  The Applicant told the Tribunal that she received advice from HR[119] that Superintendent Hester was ‘attempting to remove [her] from the portfolio and to unpick an agreement from two years ago’.  This was ‘a complete blindside.’[120]  The effect of this would have been that she would have lost her position entirely.[121]  It was suggested to the Applicant by AFPA that she lodge a complaint against Superintendent Hester through the Professional Standards (‘PRS’) mechanism.[122]

   [118] Transcript, 3 March 2019, 86.

   [119] Transcript, 3 March 2019, 87.

   [120] Transcript, 3 March 2019, 86.

   [121] Transcript, 3 March 2019, 88.

   [122] s71, 125; Transcript, 3 March 2019, 92-93.

3. On 29 August 2016, the Applicant met with Ms Sneesby for an update on the advancement process, and at 11.34am emailed Ms Sneesby setting out her understanding of the situation.[123]

   [123] T13.25, 134 & 135.

4. At 4.09pm on 30 August 2016 Ms Sneesby emailed the Applicant with clarification about the Applicant's understanding that Superintendent Hester anticipated that there would be no problem with her advancing via the advancement process that is designed/established under the current EA, and that a new EA would not adversely affect the advancement.[124]   Ms Sneesby informed the Applicant that if the new EA comes into effect Superintendent Hester may not have control over the outcomes.  However, he would endeavour to push the advancement request through on grounds of fairness under the new EA, as it was lodged under the existing EA. [125]

   [124] T13.5, 134.

   [125] T13.5, 134.

5. Between 31 August 2016 and 12 September 2016 the Applicant was on leave.[126]

   [126] T22; s 71 documents, 124.

   Advancement decision

6. After Superintendent Hester returned from recreation leave on 24 July 2016, he reviewed the Applicant’s advancement request and supporting documentation.[127]

   [127] T8, 52; Exhibit R9, [26].

7. Throughout August 2016, Superintendent Hester worked with Ms Sneesby and Ms Suzanne Crilly, with advice from the intelligence training team, to develop a pathway to assist the Applicant to achieve the skills and capabilities to advance to a Band 7 Intelligence Analyst.[128]

   [128] T8, 152; Exhibit R9, [30]; Transcript, 4 March 2019, 189.

8. On 1 September 2016, Superintendent Hester wrote a letter setting out his decision on the Applicant's request for advancement (‘advancement decision’). This letter was handed to the Applicant on her return from leave on 12 September 2016.  Superintendent Hester decided not to advance the Applicant to Band 7.2 for the following reasons:

   ·the feedback on the Applicant's Capability/Behavioural assessment did not ‘meet a threshold of predominantly 'always", and

   ·the Applicant was presently unable to support investigations without supervision.[129]

   [129] T22.4.

9. During cross-examination, the Applicant said that she did not have analytical skills ‘recognisable by Superintendent Hester’ as he set ‘his own threshold’ for what was required of an analyst at Band 7.  He determined the qualifications and skills he expected of an analyst at this level and then applied this standard to the Applicant.[130]  In her view, ‘the parameters that [Superintendent Hester] placed around his assessment of [her] … were unreasonable … he had identified a scope that he wanted to have in his analysts and that was a scope that was working towards the tactical intelligence under the new function, the new arrangements and that’s what he applied.’[131]

   [130] Transcript, 3 March 2019, 61.

   [131] Transcript, 3 March 2019, 62.

10. Superintendent Hester told the Tribunal that he would expect that a person applying for the highest rank of intelligence analyst (Band 7) would achieve in the peer reviews ‘always’ for nearly every competency.  He said that he does not expect perfection and it is not a matter of reaching a certain percentage; but it is an assessment he is required to make as Coordinator. [132]

    [132] Transcript, 4 March 2019, 215-216.

11. In the advancement decision Superintendent Hester advised the Applicant that to assist in her to develop the required skills for a Band 7 analyst:

    ·she would be placed in a Police Intelligence Development Program (PIDP) commencing in November 2016;

    ·she would undertake a Skills Audit and Recognition of Prior Learning with the Intelligence Training team to identify skill gaps; and

    ·if opportunities were required by the Applicant to develop further skills not presently attainable in her work area, he would assist in finding those opportunities.[133]

    [133] T22.4.

    Meeting to convey advancement decision

12. During September 2016, Superintendent Hester was Acting Commander of Intelligence and Ms Suzanne Crilly was acting in Superintendent Hester's substantive position.[134]

    [134] T8, 52; Exhibit R9, [34].

13. On 12 September 2016, the Applicant returned from leave[135] and met with Acting Coordinator Crilly and Ms Sneesby at 2pm[136] following an exchange of emails making the arrangements.[137]  The first email from Ms Crilly attached the advancement decision letter dated 1 September 2016.  Superintendent Hester told the Tribunal that he did not attend the meeting as he had asked Ms Crilly in his absence to take carriage of the Applicant’s development and action plan going forward.[138]

    [135] T8.1.

    [136] T13.1; 123.

    [137] T13.13; 157 and 158.

    [138] Transcript, 4 March 2019, 205.

14. At 10.42am on 13 September 2016 the Applicant emailed Ms Crilly setting out the agreed steps following the meeting.[139] At 1.59pm on 14 September 2016 Ms Crilly responded to the Applicant.[140]

    [139] T13.13, 156 and 157.

    [140] T13.13, 155.

15. On 14 September 2016, Superintendent Hester met with Ms Crilly and Ms Sneesby to discuss the development of a PDA and assessment plans for the Applicant to ensure she could obtain the skills necessary to perform the role of an Intelligence Analyst without constant supervision.[141]

    [141] T8, 52; T8.2, 61; Exhibit A2, [93].

16. On 14 September 2016, the Applicant consulted with HR. During this meeting, the Applicant advised she was upset by the process and the lack of 'support or guidance' she received from Superintendent Hester.[142]

    [142] s71 documents, 127; Transcript, 3 March 2019, 107.

17. At 12.57pm on 15 September 2016 Ms Sneesby emailed the Applicant with a PDA for her action, outlining the amendments that had been made for her to develop the necessary skills as a Band 6/7 analyst.[143]

    [143] T13.13, 154 and 155.

18. At 2:00pm on 16 September 2016 Superintendent Hester approved the Applicant’s request to transfer to Internal Audit.[144]

    [144] T8, 52; T8.2, 62; T25.3, 392; Exhibit R9, [37].

19. At 2:04 pm on 16 September 2016 Superintendent Hester emailed Ms Crilly and asked her to advise the Applicant that:

    ·as she would be away from Intelligence for several months, he could not guarantee her return to the FAC position and it would need to be filled;

    ·any return to Intelligence by the Applicant would be based on their needs;

    ·the Applicant would be removed from the November PIDP as she could not complete the workbook during the audit; and

    ·any skills during the Audit are not transferable to Intelligence.[145]

    [145] T25.3, 392.

20. On 20 September 2016, the Applicant contacted the Confidant Network in relation to reported 'bullying behaviours and unfair/harsh treatment'.  The referral noted the Applicant felt 'excluded and isolated' from the advancement process and complained of communication issues. The Applicant noted she had raised her concerns with various persons and entities within the AFP and received medical advice on how to deal with the 'anxiety', including taking one week off work.[146]

    [146] s 71 documents,100; Exhibit A2, [100].

21. On 21 September 2016, the Applicant consulted with Sergeant Donna Hall of the Confidant Network.[147]

    [147] s 71 documents, 95; Exhibit A2 [106].

22. On 6 October 2016, the Applicant wrote to Commander Michael Chew, Acting National Manager, People Safety and Security seeking review of the advancement decision.[148]

    [148] T22.5.

    Review of advancement decision

23. On 19 December 2016, IR considered the advancement decision and identified that review should be sought form Commander Mark Harrison pursuant to the review policy.[149]

    [149] T9.2.

24. On 3 January 2017, the Applicant was advised by IR about the appropriate review mechanism for the advancement decision.[150]

    [150] T9.3.

25. On 12 January 2017, Detective Superintendent Geoff Turner, Acting Manager of Intelligence Operations, reviewed the advancement decision in Commander Harrison's absence.

26. Detective Superintendent Turner concluded that the Applicant did not meet the requirements for her current position as a Criminal Intelligence Analyst and that an advancement to a Band 7 role 'would not be justified'.[151]  The Applicant was not informed of this decision until a later date as she had refused to meet with the Manager of Intelligence Operations (Mark Harrison) upon his return to the workplace.[152]

    [151] s 71 documents, 2.

    [152] s 71 documents, 76.

27. On 21 February 2017, the Applicant returned her review of the advancement decision to National Manager, People Safety and Security seeking further review of the advancement decision.[153]

    [153] s 71 documents, 42.

28. At 11.23am on 24 February 2017, Commander Harrison emailed the Applicant and confirmed that her application for advancement was not endorsed for reasons previously articulated.[154]

    [154] s 71 documents, 10.

29. In April 2017, the Applicant moved temporarily out of Intelligence.[155]

    [155] T25; Exhibit A2, [109].

30. On 1 June 2017 Jason Cresswell, Acting National Manager of People Safety and Security, following receipt of an additional submission from the Applicant, determined that he supported the decision to delay the Applicant's advancement, until such time that she was able to 'demonstrate and fulfil the requirements of an Intelligence Analyst'.[156]

    [156] s 71 documents, 12.

    Professional standards complaint

31. On 31 August 2016, the Applicant commenced a PRS complaint against Superintendent Hester. The Applicant told the Tribunal that her complaint related to bullying behaviours in the workplace, the workplace environment, other people in the workplace, and her experience with Superintendent Hester.[157] 

    [157] Transcript 3 March 2019, 92, 106-107.

32. On 14 October 2016, the Applicant finalised and submitted the PRS complaint against Superintendent Hester.[158]  In this complaint, the Applicant alleges Superintendent Hester engaged in 'bullying behaviours', with the 'majority' occurring through the advancement process.[159]

    [158] s 71 documents, 376.

    [159] T25; s 71 documents, 376; Exhibit A2, [90].

33. On 26 October 2016, the Applicant was advised by PRS that her complaint against Superintendent Hester had been assessed, and it had been determined that no further action would be taken.  The substance of the complaint was characterised as 'workplace conflict' that should be addressed under the applicable policy.[160]

    [160] T25.13; Exhibit A2, [102].

34. On 20 December 2016, the Applicant consulted with AFP psychological services[161] and requested a review of the PRS decision dated 26 October 2016.[162]

    [161] T12.7.

    [162] s 71 documents, 373.

35. On 2 May 2017, the PRS Complaint Management Team informed the Applicant that her request of 20 December 2016 for a review of PRS's earlier decision had been finalised. It was again determined that there was insufficient evidence to support a complaint of bullying or harassment, and that the initial assessment that the matter constituted a 'workplace conflict' was correct.[163]

    [163] T25.13.

    Medical treatment in relation to the claimed condition

36. On 2 September 2016, the Applicant consulted with her general practitioner indicating that she 'wants to take time off work' and that she had 'conflict with a supervisor/coordinator'. The clinical notes also record that HR and IR were involved, and that the Applicant may be making an official complaint.[164]  The Applicant was given a medical certificate for the period 31 August to 7 September 2016 and was prescribed Diazepam.[165]

    [164] Exhibit R1, 36.

    [165] Transcript 3 March 2019, 95.

37. The Applicant told the Tribunal that she went to the doctor after AFPA had advised her to make a PRS complaint about Superintendent Hester.  She opened the complaint on 31 August 2016 but did not populate it because she ‘really didn’t feel well’.  She did not ‘feel very cohesive’ and felt ‘really confused, and … really unhappy.’[166]  She told the doctor she had been advised to make a PRS complaint but that she didn’t really want to do so.  This is for reason that she felt a ‘bit vulnerable’ and a ‘bit targeted’.[167]  The doctor told her that the only way she was going to be able to alleviate that condition is to remove herself from the environment. [168]

    [166] Transcript 3 March 2019, 96.

    [167] Transcript 3 March 2019, 96.

    [168] Transcript 3 March 2019, 96 and 105.

38. On 17 January 2017, the Applicant attended her general practitioner and advised that she had not been back at work and was looking to move to another job.[169]  The Applicant obtained a medical certificate certifying her unfit for work between 19 January 2017 and 1 February 2017 inclusive.[170]

    [169] Exhibit R1, 35.

    [170] Exhibit R1, 141.

39. On 24 January 2017, the Applicant was reviewed by Dr Cousins, general practitioner. Dr Cousins provided a medical certificate on the same day, relevantly indicating that the Applicant's date of injury was "June 2016", and the initial assessment was 2 September 2016. Dr Cousins certified the Applicant unfit for work from 9 December 2016 to 1 February 2017.[171]  On 2 February 2017 the Applicant returned to work.[172]

    [171] T10.1.

    [172] T12.3, 86.

    Dr Catherine Oelrichs, Psychiatrist

40. On 8 March 2017, the Applicant was reviewed by Dr Catherine Oelrichs, psychiatrist, at the Respondent’s request and she provided a report on 17 March 2017. Dr Oelrichs reported that the Applicant presented as 'anxious and mildly agitated at times' and diagnosed the Applicant with adjustment disorder with anxiety under DSM-5.

41. Dr Oelrichs noted the Applicant’s report that she first noticed symptoms in June 2016 and this was when she first suspected that an illness was affecting her work and home life. Dr Oelrichs considered that the Applicant developed clinically apparent symptoms of anxiety around September 2016, with these symptoms becoming more marked around December 2016 when the Applicant became significantly distressed following a training course, and felt more concerned about alleged bullying and harassment in the workplace.[173]

    [173] T21.

42. At the hearing, Dr Oelrichs confirmed her opinion that the Applicant first experienced symptoms clinically consistent with a psychological condition (adjustment disorder with anxiety) in early September 2016, and that the advancement process was likely to have significantly contributed to the manifestation of her symptoms.[174]

    SUBMISSIONS

    [174] Transcript, 4 March 2019, 116-117.

    Applicant

43. The Applicant disputes only the process of the advancement, not the outcome of the process.  Superintendent Hester was responsible for her advancement process from 27 June 2016 and he was required to follow the policy.  He did not do so as he did not hold the ‘crucial’ meeting with her and her Team Leader and allow her to provide input into the assessment process and have the opportunity to address any identified shortfalls.  She was not given consideration or ‘visibility’ in her own assessment process so there was no opportunity for her to advance.  The reason for the assessment/advancement is to examine her capabilities, address her shortfalls and then be able to develop these as part of her career progression.

44. The Applicant was eligible to be given the opportunity to be assessed for advancement however Superintendent Hester did not include or involve her or advise her of any of the reasons for the delay or why the process should be delayed.  It is not reasonable that he did not include her in her own process and this caused her some confusion. 

45. During the two to four week period referred to in the policy, there was the opportunity for Superintendent Hester to outline to the Applicant why she does not meet the requisites for advancement, and for her to offer evidence or to gain some understanding from him of what his expectations are of her going forward.  He did not hold the required meeting and there was no opportunity for her to have a conversation with him and have input into the process.  Being at the meeting to deliver the decision outcome (on 12 September) is not the same as being involved or having contribution to her own advancement process.  

46. The Applicant contends that if it is a reasonable management action and taken in a reasonable manner, part of the reasonable manner is the conduct of the process and her inclusion in her own assessment because it is her capabilities to develop under the umbrella of the whole intelligence portfolio.

47. The Applicant does not dispute Superintendent Hester’s assessment except that she considers that the outcomes he arrived at are contradictory and not achievable.  If he had had the conversation with her and allowed her to understand his thoughts and described to her where her shortfalls lie, then his outcome determination would have been more definitive.  When she received the outcome, she could not see how she was to achieve it because it was open-ended and she could not see how she could do so between November 2016 and February 2017 because of the specified timeframes.

    Respondent

48. The Respondent accepts that the Applicant suffered from an ailment within the meaning of the Act.  The medical evidence supports a finding that the Applicant had symptoms of a psychological condition on 2 September 2016 before she was made aware of the outcome of the advancement process.  It was the advancement process that had the necessary contributing feature to the onset or manifestation of the Applicant’s symptoms and her condition.  Had this not occurred, the Applicant would not have experienced the symptoms she did at the time.  The outcome of the advancement process is not causative of the Applicant’s symptoms as this post-dated the onset of her symptoms on 2 September 2016.

49. The advancement process is the ‘administrative action’ that was causative of the manifestation of the Applicant’s condition by 2 September 2016.  A process can qualify as an administrative action.

50. The process is a ‘reasonable administrative action’ because it was the only way that an advancement request could be determined.  There was a system in place for the determination of advancement requests as detailed in the relevant policy (Advancement Arrangements).  The only question is whether it was done in a reasonable manner.

51. The question of reasonableness is enlivened in the manner in which the advancement process was conducted.  The evidence supports a finding that justifies and plausibly explains the peculiarities with the Applicant’s advancement request that meant that it needed to be conducted in a particular manner and took longer than usual.  These peculiarities include the uncertainty surrounding the Applicant’s eligibility to advance, the effect on the advancement process timeframe of Superintendent Hester’s planned leave, the need for Superintendent Hester to obtain further information about the Applicant’s skills, competencies and experience as an analyst, and the obligation to develop a detailed pathway to allow the Applicant to have the opportunities to develop the skills and competencies required to allow her to advance to Band 7.

52. The policy assigns responsibilities to various individuals and provides a flexible timeframe for meeting the steps in the advancement process.  The Applicant’s primary complaint is that Superintendent Hester did not conduct a meeting to provide her with feedback prior to making a decision on her advancement.  There is no hard and fast timetable in the policy that mandates that the various steps be done by a certain date.  The meeting to provide the Applicant with feedback was held at the conclusion of the process (12 September).  The Applicant was not precluded from input or visibility in the process as she was consulted by Mr McDermott in relation to the request by Superintendent Hester for further information, and she developed a response to this request together with Mr McDermott.

    CONSIDERATION AND REASONS

    Did the Applicant suffer an ‘ailment’?

1. The Applicant consulted her general practitioner, Dr Stephen Cousins on 2 September 2016 who declared her unfit for work for the period 31 August to 2016 and prescribed her medication. 

2. The Applicant was reviewed by Dr Catherine Oelrichs on 8 March 2017 who reported that the Applicant first developed clinically apparent symptoms of anxiety around September 2016, and diagnosed her with adjustment disorder with anxiety under DSM-5.  In her evidence at the hearing, Dr Oelrichs confirmed her opinion that the Applicant first experienced symptoms clinically consistent with a psychological condition (adjustment disorder with anxiety) in early September 2016, and that the advancement process was likely to have significantly contributed to the manifestation of her symptoms.[175]

   [175] Transcript, 4 March 2019, 116-117.

3. On the basis of Dr Oelrichs’ assessment, the Tribunal finds that the Applicant suffered from a psychological condition that meets the definition of an ‘ailment’, in s 4 of the SRC Act.

   Contributed to, to a significant degree

4. On the basis of the medical evidence referred to above, the Tribunal is satisfied that the Applicant’s ailment was contributed to, to a significant degree, by her employment at the AFP. That is, the Applicant suffered a ‘disease’ as defined in section 5B of the Act. This is not disputed by the Respondent.

5. The issue is whether the Applicant suffered this ‘disease’ as a result of ‘reasonable administrative action taken in a reasonable manner’ in respect of her employment.

   ‘Reasonable administrative action taken in reasonable manner’

6. To determine whether the ‘adjustment disorder with anxiety’ suffered by the Applicant is excluded by section 5A it is necessary to determine the following:

   1)Was the advancement process ‘administrative action’ taken in respect of the Applicant’s employment?

   2)Was the administrative action ‘reasonable’?

   3)Was the action ‘taken in a reasonable manner’?

   4)Was the condition suffered by the Applicant ‘as a result of’ the administrative action?

   1)        Was the advancement process ‘administrative action’?

7. The term ‘administrative action’ is not given any special meaning under the Act, whereas the term ‘reasonable administrative action’ is explicated in section 5A(2), outlined below.

8. In Rutledge and Comcare [2011] AATA 865 at [21]-[22], Member Webb had regard to the common usage of the words ‘administrative action’:

   [21] … ‘administrative’ means ‘pertaining to or dealing with, the conduct or management of affairs; … ‘action’ means ‘something done or performed, a deed, an act.’ Thus, applying the common meaning of these words in the context of an employee’s employment, it can be seen that an ‘administrative action’ involves something that is done to effect the conduct or management of the employee’s employment.

   [22] When viewed through the frame of the legislation, however, it does not follow that any interaction between a supervisor or manager and a subordinate employee that occurs in the context of employment will meet this test to the extent that it may be considered to be an ‘administrative action’. [176]

   (emphasis added)

   [176] [2011] AATA 865 at [21]-[22].

9. In the Full Federal Court decision of Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 (‘Reeve’), Rares and Tracey JJ held that ‘administrative action’ referred to in the exclusion part of s 5A(1):

   [57]… was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.

   [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”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.

   (Emphasis added)

10. Having considered the Explanatory Memorandum to the Bill that introduced the amendments to the SRC Act, Rares and Tracey JJ observed:

    [73]     Here, the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1).

    [74]     However, the Explanatory Memorandum did not suggest that “administrative action” was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.

    (Emphasis added)

11. The evidence before the Tribunal is that the advancement process provided for in the Advancement Arrangements detailed the steps to be followed by an intelligence analyst and his or her supervisors and other AFP officers in order for an analyst to advance from one Band level to the next.  The authorities referred to above support a finding that ‘administrative action’ includes a process that impacts on an employee’s employment, that is ‘concerned with conditions in which the employee works, the terms of [her] engagement and [her] duties.’: Reeve, [60]. Accordingly, the Tribunal is satisfied that the analyst advancement process applicable to the Applicant meets the requirements of ‘administrative action’ for the purposes of s 5A of the SRC Act.

    2)        Was the administrative action ‘reasonable’?

12. Section 5A(2) provides that, for the purposes of section 5A(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.”

13. S 5A(2) of the Act is not an exhaustive list.[177]

    [177] The Full Federal Court in Drenth v Comcare (2012) 128 ALD 1, at [21] held that the 'action' referred to in s 5A(1) is not qualified by the non-exhaustive list of examples of 'reasonable administrative action' provided for in s 5A(2).

14. The evidence before the Tribunal is that the advancement process prescribed in the Advancement Arrangements is not solely one that provides a process for an intelligence analyst to be promoted to the next Band level.  It is also a process for appraising the analyst’s performance and developing a pathway to assist the analyst to develop their skills and competencies and achieve their career goals.[178] The advancement process is multidimensional in that it provides a process for peer review and appraisal of an analyst’s current performance, facilitates the movement by an analyst to a higher Band level without the need to compete in a merit selection process, allows the identification of any gaps in their skill set, and provides the development of a pathway to allow them to fill these gaps and thereby meet the requisites for advancement to the next Band level.  

    [178] Transcript, 3 March 2019, 43 and 109.

15. On the basis of this evidence, the Tribunal finds that the advancement process provided for under the Advancement Arrangements, is one which has characteristics similar to the examples of ‘reasonable administrative action’ listed in s 5A(2), specifically (a) ‘a reasonable appraisal of the employee’s performance’; and (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 Tribunal notes that the examples in s 5A(2) are not exhaustive, and while the advancement process may not neatly fit within the specific actions listed in s 5A(2), the process is one which has close similarities with these examples.

16. The Tribunal is therefore satisfied that the advancement process applicable to the circumstances of the Applicant meets the definition of ‘reasonable administrative action’ for the purposes of s 5A(1) of the SRC Act.

    3)        Was the administrative action ‘taken in a reasonable manner’?

17. Whether or not an administrative action was undertaken reasonably is a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned.[179]

    [179] Stieglitz v Comcare [2010] AATA 263; Thompson and Comcare [2012] AATA 752, at [61].

18. In Drenth and Comcare [2011] AATA 582 Deputy President Jarvis and Professor Ben-Tovim made clear at [75] and [76]:

    To determine whether the actions were reasonable involves an objective judgment, taking into account all of the circumstances in which they occurred, and determining whether they were rational, lawful and not irrelevant or disproportionate to what was required; and the question of what was “reasonable” does not involve determining whether the action could have been done more reasonably or in a different way more acceptable to the decision-maker: see Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105 at [78]–[80], and the helpful analysis of Professor Robin Creyke, Senior Member, and Dr Peter Wilkins, Member, in Re Lynch and Comcare (2010) 114 ALD 394.

    (Emphasis added)

19. In Von Stieglitz and Comcare [2010] AATA 263, Senior Member Creyke and Member Miller said at [67]:

    Whatever administrative action is to be taken must be “reasonable”. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’, Dr Campbell summed up many facets of these principles in Re Georges and Telstra Corporation Ltd when he said:

    I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound [sic] of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.

    (Emphasis added)

20. The Federal Court in Comcare v Martinez (No 2) [2013] FCA 439 (‘Martinez’) at [83] agreed with the statement of Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42 (‘Keen’):

    Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.

21. The Full Court in Keen at [63] said:[180]

    In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.

    (Emphasis added)

    [180] Cited with approval by Cowdroy J in National Australia Bank Limited v KRDV (2012) 204 FCR 436 at [51].

22. The Tribunal finds, based on the evidence before it, and for the following reasons, that the ‘reasonable administrative action’ was ‘taken in a reasonable manner’ by the Applicant’s employer.

23. The advancement process was initiated by the Applicant on 2 June 2016 when, following discussions with her then Team Leader, Mr McDermott, she identified those who would be asked to provide peer review for her Capability/Behavioural Assessment.  Following her transfer, at her own request to FAC, Superintendent Hester assumed responsibility as the Coordinator for her advancement.  The evidence of Mr McDermott, Superintendent Hester and Mr Winter was that this was entirely appropriate given that the Applicant had moved to another a team within Superintendent Hester’s portfolio.  Following her transfer to FAC, the Applicant requested a meeting with Superintendent Hester to discuss her advancement process.  The evidence demonstrates that at this meeting on 22 June 2016 Superintendent Hester raised some concerns he had in relation to whether the Applicant met the skills and competencies required for a Band 7 analyst, but he indicated he would wait until he had received all the documentation and would assess her request fairly and against the criteria.  The evidence before the Tribunal, including that of the Applicant, is that Superintendent Hester did not ‘close the door’ to her being advanced to Band 7, nor did he say that she could not continue with her advancement request.  The evidence does not support a finding that the outcome of the Applicant’s advancement request was a forgone conclusion or was predetermined at the end of the 22 June 2016 meeting.  On the basis of this evidence, the Tribunal finds that these preliminary steps of the advancement process were ‘taken in a reasonable manner’.

24. On 30 June 2016, within three days of receiving the Applicant’s advancement request with a recommendation for her advancement by Mr McDermott and accompanied by the Capability/Behavioural Assessments, Superintendent Hester sought further information from Mr McDermott.  This further information related to the Applicant’s demonstrated experience in the areas that were more aligned with the capabilities of an Intelligence Analyst, in particular examples of where the Applicant had to apply analytic skills to a particular task.  Once Mr McDermott received this request, he consulted with the Applicant and they together developed a response for Superintendent Hester to provide the information he had requested and this was conveyed to him by email on 19 July 2016. The evidence before the Tribunal is the Applicant was given, at this stage of the process, the opportunity by her employer to provide input into her own advancement, and to provide evidence and examples of the skills and competencies that appeared to Superintendent Hester on the information submitted in support of her advancement to be lacking.  On the basis of this evidence, the Tribunal finds that this step of the advancement process was ‘taken in a reasonable manner’.

25. Upon his return from a period of planned leave on 24 July 2016, Superintendent Hester reviewed the information and documentation in support of the Applicant’s request for advancement, and determined that he required advice from HR as to her eligibility to advance due to the unusual circumstances through which she obtained her substantive position.  This was a prudent and reasonable course of action because had the Applicant been ineligible to advance then both Superintendent Hester and the Applicant needed to be made aware that her request for advancement could not be successful.  The period of time taken for this advice to be obtained from HR was some four weeks, a period that was longer than desirable.  However, the evidence before the Tribunal is that during this period the Applicant was kept informed by Ms Sneesby that these inquiries with HR were being made, and that clarification as to her eligibility to advance was crucial to the outcome of the advancement process.  On the basis of the evidence before it, the Tribunal is satisfied that the steps taken by Superintendent Hester to determine the Applicant’s eligibility for advancement, although extended, were essential to the advancement process and therefore were in the circumstances ‘taken in a reasonable manner.’

26. Once Superintendent Hester had received advice from HR as the Applicant’s eligibility to advance he worked with Ms Crilly, Ms Sneesby and the intelligence training team to develop a pathway for the Applicant’s skills and competencies to be built and to give her a way forward to advance to Band 7.  Within one week of receiving the advice from HR, Superintendent Hester wrote the letter dated 1 September 2016 detailing the advancement decision and the development pathway for the Applicant.  On the basis of the evidence before it, the Tribunal finds that the steps taken by Superintendent Hester to make his findings in relation to the Applicant’s advancement and the pathway forward were ‘taken in a reasonable manner.’

27. The advancement decision was conveyed to the Applicant at the meeting with Ms Crilly and Ms Sneesby on 12 September.  Although he was not present at the meeting for reason he was at the time undertaking higher duties, Superintendent Hester’s evidence is that this meeting met the requirement in clause 13 of the Advancement Arrangements that the Coordinator must arrange a meeting with the analyst and their Team Leader to provide feedback on the Capability/Behavioural Assessments and that this meeting ‘should ideally occur within two to four weeks of the assessment’. The Applicant’s understanding of this clause of the Advancement Arrangements is that the meeting referred to should ideally occur two to four weeks after the Coordinator receives the assessments, that is shortly after the Coordinator begins the review process.  The Applicant argues that this allows the analyst to provide input into the advancement process and to address any identified shortfalls, thereby providing the Coordinator with additional information on which an advancement decision can be made.  Superintendent Hester’s understanding of the clause is that the meeting referred to is to occur at the conclusion of the process once all information has been received and considered and a decision made on the advancement, including the development of a pathway for the analyst where appropriate. 

1. The Tribunal finds that the relevant clause in the Advancement Arrangements is ambiguous as to its intention, but that the interpretation of it by Superintendent Hester is reasonable. In making this finding the Tribunal has had regard to the fact that the Applicant was not disadvantaged by the meeting not occurring at an earlier point in the advancement process, as she had been given the opportunity to provide additional evidence and examples of her skills and competencies to address the shortfalls identified by Superintendent Hester after his initial review of the advancement request in late June 2016 contained in his request for further information to Mr McDermott.  On the basis of the evidence before it, the Tribunal is satisfied that this step of the advancement process was ‘taken in a reasonable manner’.

2. In summary, the Tribunal is satisfied that, assessed objectively and taking into account all the circumstances, the advancement process was ‘taken in a reasonable manner’.  In making this finding, the Tribunal has had regard to the fact that the authorities provide that reasonableness does not require an assessment of whether the action could have been done more reasonably or in a different way, including in a way more acceptable to the Applicant.

3. The Tribunal is satisfied that the advancement process was a ‘reasonable administrative action taken in a reasonable manner’ as contemplated by s 5A(1) of the SRC Act.

   4)        Was the condition suffered by the Applicant ‘as a result of’ the administrative action?

4. The High Court in Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29 held, at [45] (‘Martin’), that:

   …an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.

   (Emphasis added)

5. The High Court in Martin then went on to say (at [47]) that:

   Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined in s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.

   (Emphasis added)

6. The Full Federal Court in Lim noted (at [45]):

   …where both employment and non-employment factors are posited as contributing to an ailment or an aggravation of such an ailment (within the meaning of s 5B(1)), in order to determine whether s 5B applies, a finding would need to be made as to whether the ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. If there were an affirmative finding, then the further questions would arise as to whether or not there was reasonable administrative action taken in a reasonable manner; and, if so, whether or not the disease would have been suffered by the employee if that action had not been taken. If the Tribunal were so satisfied, then the exclusion to the definition of “injury” in s 5A(1) would apply.

7. As outlined by the Full Federal Court in Lim v Comcare [2017] FCAFC 64 (‘Lim’”) (at [41]), applying Martin, to satisfy the causal requirement in the exclusion in section 5A(1), the Tribunal has to be satisfied that the Applicant would not have suffered the psychological condition (ailment) if the administrative action had not been taken.[181]

   [181] See also Hollis v Comcare [2017] FCA 558, at [5].

8. On the basis of the evidence before it, particularly the medical evidence provided by Dr Oelrichs, the Tribunal finds that the advancement process was causative of the onset of the Applicant’s symptoms of her ailment that were first recognised on 2 September 2016 when she attended her general practitioner.  The outcome of the advancement decision dated 1 September 2016 that was communicated to the Applicant at the meeting on 12 September 2016 post-dated the onset of the Applicant’s symptoms and was not therefore causative of her ailment.

   CONCLUSION

9. The exclusionary provision in section 5A(1) of the Act applies such that the Applicant’s ailment sustained in the course of her employment is not an “injury” for the purposes of the SRC Act.

   DECISION

10. The Reviewable Decision dated 19 June 2017 is affirmed.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

………………………………………

Associate

Dated: 19 August 2019

Date(s) of hearing:	4 March 2019 – 5 March 2019; 3 June 2019
Applicant:	In person
Counsel for the Respondent:	Ms Kristy Katavic
Solicitors for the Respondent:	Ms Fiona Dempsey and Mr Henry Chang, Australian Government Solicitor