Re Lim and Comcare
[2015] AATA 189
•27 March 2015
[2015] AATA 189
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4430
Sharon Yuh-Shyan Lim
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member
Date 27 March 2015 Place Canberra Comcare’s decision on 14 August 2013 is affirmed.
..............................[sgd]..........................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — whether condition is an injury — whether caused by reasonable administrative action — multiple causes of condition — whether condition suffered prior to reasonable administrative action — decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 7(4), 14
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Telecommunications Act 1997, Schedule 3
CASES
Comcare v Martin [2015] FCA 4
Comcare v Martinez (No 2) (2013) 212 FCR 272
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Drenth v Comcare (2012) 128 ALD 1
Hart v Comcare (2005) 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42Smith v Comcare (2013) 212 FCR 335
REASONS FOR DECISION
James Popple, Senior Member
27 March 2015
Summary
I affirm Comcare’s decision to deny the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The applicant suffered a psychological condition which arose out of her employment with the Australian Communications and Media Authority (ACMA). But one cause of the condition was reasonable administrative action taken in a reasonable manner by ACMA in respect of the applicant’s employment. Accordingly, the condition is not an injury for the purposes of s 5A of the SRC Act, and Comcare is not liable to pay compensation.
Background
Dr Sharon Lim worked for ACMA. On 24 March 2011, she submitted a claim for workers’ compensation for “adjustment reaction with depressant anxiety”. She said that she had been bullied and harassed by her supervisor. On 12 July 2011, Comcare disallowed her claim. Comcare conceded that Dr Lim had sustained a psychological condition, which was contributed to, to a significant degree, by her employment with ACMA. But Comcare determined that it was not liable to pay compensation under s 14 of the SRC Act. Comcare said that Dr Lim’s condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment and, therefore, was excluded from the definition of “injury” in s 5A of the SRC Act. On 17 June 2013, Dr Lim requested a reconsideration of that determination. On 14 August 2013, Comcare affirmed its determination.
On 3 September 2013, Dr Lim applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of that decision.
Decision under review
The decision under review is Comcare’s decision on 14 August 2013 to affirm its determination that Comcare is not liable to pay compensation to Dr Lim.
Issues
The issues in this review are:
·when did Dr Lim suffer the psychological condition; and
·was her psychological condition suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment by ACMA?
These two issues are interwoven: a reasonable administrative action cannot cause a condition suffered before that action.
Reasonable administrative action taken in a reasonable manner
Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A defines “injury” as follows:
5A Definition of injury
(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.
In several recent decisions, the Federal Court has provided guidance on what is a reasonable administrative action, and how to decide whether such an action is taken in a reasonable manner. Some of that guidance is complex. I will set out what the Federal Court has said, then summarize the principles applicable to this review.
In Commonwealth Bank of Australia v Reeve,[1] Rares and Tracey JJ explained that:
… 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).
However, the Explanatory Memorandum [to the Bill for the Act that inserted s 5A[2]] 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”.[3]
[1] (2012) 199 FCR 463.
[2] Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.
[3] (2012) 199 FCR 463 at [73]–[74] per Rares and Tracey JJ.
Also in Reeve, Gray J said that:
… it is difficult to find in the words “suffered as a result of” some limitation as to the proximity of the relationship between the condition and the action. Whether the necessary causal relationship exists will be a question of fact in each case, but the words chosen by the legislature to describe the causal relationship do not lend themselves readily to confinement to a direct result, or a result with any particular degree of proximity. Similarly, the words used to describe the relationship between the action and the employment (“in respect of”) do not appear to be restrictive of the kind of connection that is envisaged.
The limits of the exclusion therefore appear to lie in the word “employment” and the word “administrative”. In the context of the exclusion, the word “employment” appears to be used in the sense of the “action or process of employing; the state of being employed” (Oxford English Dictionary) or “the act of employing” or “the state of being employed” (Macquarie Dictionary), rather than “that on which one is employed” (an alternative meaning given in both dictionaries). The history recounted in the Explanatory Memorandum to the amending Bill, and the identification in that Explanatory Memorandum of the mischief to which the amendment was directed, support this proposition. It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.
…
In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. This meaning may have been the one the Tribunal was attempting to express in its reasons for decision, when it referred to “legitimate human resource management actions”. Although inapt, the description used by the Tribunal is not far removed from the proper construction of the exclusion. As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.[4]
[4] (2012) 199 FCR 463 at [29], [30] and [33] per Gray J.
In Drenth v Comcare, the Full Court of the Federal Court explained that the “action” referred to in s 5A(1) is not qualified by the non-exhaustive list of examples of “reasonable administrative action” in s 5A(2).[5]
[5] (2012) 128 ALD 1 at [21] per Rares, McKerracher and Murphy JJ citing Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at [62] per Rares and Tracey JJ.
In Comcare v Martinez (No 2), the Federal Court considered the circumstances in which an administrative action is taken in a reasonable manner for the purposes of s 5A. Robertson J said:
It will be recalled that the Tribunal said that the [Comcare guideline on bullying] said that “whether intended or not if, objectively, the effect of action by a supervisor is to humiliate, offend or distress an employee and that this ‘should reasonably have been expected’, it amounts to bullying” and to bully someone is not to conduct administrative action in a reasonable manner.
However, in my opinion, the impact on the employee cannot of or by itself establish whether or not administrative action was taken in a reasonable manner within the meaning of s 5A(1) …
…
The significance of the [Tribunal’s] error may be illustrated by the consideration that, as submitted by the applicant, some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work.
…
The Tribunal referred to Bropho v Human Rights and Equal Opportunity Commission[6] a case which concerned s 18D of the Racial Discrimination Act 1975 (Cth) … In my view, since context is a large part of statutory construction, it is not appropriate to start from a context so remote from the SRC Act, particularly given the international law background to s 18D. I would of course agree with French J, as his Honour then was, [in Bropho[7]] that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.
I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation[8] where his Honour said, in a context much closer to the present legislation:
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.[9]
[6] (2004) 135 FCR 105.
[7] See (2004) 135 FCR 105 at [79] per French J.
[8] (1998) 71 SASR 42 at 47–48.
[9] (2013) 212 FCR 272 at [72], [73], [76], [82] and [83] per Robertson J.
In Hart v Comcare,[10] the Full Court of the Federal Court (considering a since-repealed exclusionary provision in the SRC Act[11]) said:
The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing.[12]
In Reeve, Gray J (considering s 5A) said that “the principle that is taken to have been established by Hart v Comcare” is as follows:
… however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury.[13]
[10] (2005) 145 FCR 29.
[11] The Court was considering the definition of “injury” that was then in s 4(1) of the SRC Act. On 13 April 2007, that definition was repealed by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, and replaced with “injury has the meaning given by section 5A”. That Act also inserted section 5A.
[12] (2005) 145 FCR 29 at [22] per Branson, Conti and Allsop JJ.
[13] (2012) 199 FCR 463 at [24] per Gray J, citing Hart v Comcare (2005) 145 FCR 29 at [21]–[23]. See also Drenth v Comcare (2012) 128 ALD 1 at [29] per Rares, McKerracher and Murphy JJ.
I have summarized below the principles that relate to s 5A of the SRC Act, and which are applicable to this review. There is some overlap between the summary points.
·The following are administrative actions:
oan action with respect to the employee as employee;
oan action with respect to the employment relationship that the particular employee has with the employer; and
otaking steps under a contract of employment.
·The following are not administrative actions:
oan action with respect to the duties that an employee is employed to carry out;
odefining or delimiting or supervising the employment, job or task entrusted to an employee for them to perform;
ogiving directions to them as to how and when they are to perform it; and
omatters of general administration, management and the implementation of policy, even if they affect the employment of employees.
·Whether a reasonable administrative action was taken in a reasonable manner:
ois an objective decision;
odepends upon the facts of the case; and
ois not established solely on the basis of the impact on the employee.
·There may be more than one way of doing things “reasonably”. It does not matter that the thing could have been done more reasonably.
·If only one cause of a condition satisfies the exclusion in s 5A, the exclusion applies and the condition is not an “injury”. This is so, even if the condition had many separate causes.
The operation of s 7(4) of the SRC Act
Section 7(4) of the SRC Act provides that:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
In Smith v Comcare, the Full Court of the Federal Court explained that the question of liability under s 14 should be decided before considering the potential operation of s 7(4).[14] This is because, if the condition is excluded under s 5A, there is no injury for the purposes of the Act and, therefore, no injury for s 7(4) to apply to.
[14] (2013) 212 FCR 335 at [34] per Greenwood, Buchanan and Bromberg JJ.
Nonetheless, in considering below whether Dr Lim’s condition was suffered as a result of reasonable administrative action taken in a reasonable manner, I will have to decide when the condition occurred—or, at least, decide that the condition occurred no earlier than a certain date. This is because, for a condition to be a result of an administrative action, the action must have taken place before the condition was suffered. I can make that decision without considering s 7(4), which only applies if I decide that Dr Lim’s condition is not excluded under s 5A.
The use of template letters
The facts set out in [18] and [19] below are not contentious.
Dr Lim commenced working for ACMA in September 1995. In February 2007, she was promoted to an Executive Level 1 position. In December 2009, ACMA was internally restructured and Dr Lim was assigned to a position in the Radiocommunications, Licensing and Telecommunications Deployment Section (the Section) within the Operations Branch. Ms Michelle Richardson was manager of the Section and Dr Lim’s immediate supervisor.
The Section was responsible for responding to enquiries relating to Schedule 3 of the Telecommunications Act 1997, which is about the powers and immunities of carriers—relevantly to this review, carriers installing mobile telephone towers. Dr Lim had been doing this work since before the restructure. Before the restructure, ACMA had engaged an external company to conduct an audit of how it was responding to enquiries and complaints in relation to carrier activity under Schedule 3. The recommendations of that audit report were endorsed by ACMA management. One of those recommendations, which had not been implemented before the restructure, was that standard template letters be developed for responding to enquiries and complaints.
In April 2010, a difference of opinion arose between Dr Lim and her supervisor, Ms Richardson, about how ACMA should respond to enquiries, and whether those enquiries were “complaints” for the purposes of the Telecommunications Act. Ms Richardson says that:
Members of the public frequently used the language of “complaint”, but the legislation was quite specific in relation to who can lodge a complaint, and the process by which this must be done under the Telecommunications Act 1997. It was of concern to me that [Dr Lim’s] correspondence [with people who had made enquiries about telecommunications infrastructure] suggested that she had “investigated” complaints, in situations where the ACMA had not, could not, or did not perform an “investigation” in the technical sense in which the word is used under the Act.
Dr Lim says that:
It was my view that there was no lawful or reasonable basis on which we could ascribe a special meaning to “complaints” under the Act such that “complaints” within the ordinary meaning of that term could be re-classified as enquiries.
Ms Richardson encouraged Dr Lim to make use of the template letters that had been developed following the audit. Dr Lim’s view is that use of the template letters:
… was not lawful or reasonable given the case-by-case intent of the relevant statutory provisions and the statutory level of professionalism required of APS employees under [the APS Code of Conduct in] the Public Service Act 1999.
Ms Richardson says that:
It seemed to me that [Dr Lim] did not understand that she was performing quasi investigation work which she was not authorised to perform.
In her claim for workers’ compensation, Dr Lim said that she had been “subjected to a sustained campaign of bullying and harassment by [Ms Richardson] over a period of about 6 months”. From the available documents and, especially, from the evidence that Dr Lim gave at hearing, it is clear that Dr Lim felt harassed by Ms Richardson’s repeated insistence that Dr Lim use the template letters, and Ms Richardson’s refusal to agree with Dr Lim’s views about those template letters and about the requirements of her role more generally. I am sure that Dr Lim strongly and honestly believed that what Ms Richardson was asking her to do was wrong, and Dr Lim felt bullied because Ms Richardson refused to change her mind.
I hasten to add that, if I were required to make a finding on this issue, I would find that Ms Richardson’s actions in directing Dr Lim to make use of the template letters were reasonable and taken in a reasonable manner. ACMA’s management had authorised the use of template letters. Ms Richardson obtained advice from ACMA’s in-house lawyers that supported the legality of the approach adopted in the template letters. There is no evidence that her interactions with Dr Lim were discourteous or unprofessional. Ms Richardson refused to change her mind. She was entitled to refuse to change her mind. Dr Lim said that, in so refusing, Ms Richardson was “disparaging” of her. As Robertson J noted in Martinez, “some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work.”[15]
[15] (2013) 212 FCR 272 at [76] per Robertson J (see [11] above).
But I do not have to make a finding about whether these actions by Ms Richardson were reasonable and taken in a reasonable manner. This is because these actions were not administrative actions for the purposes of s 5A of the SRC Act. In [13] above, I listed four examples of actions that the Federal Court has said are not administrative actions. Ms Richardson’s dealings with Dr Lim about the use of the template letters, and how ACMA should respond to enquiries under the Telecommunications Act, match the first three of those examples: they were actions with respect to the duties that Dr Lim was employed to carry out; they defined or delimited or supervised the tasks that Dr Lim was to perform; and they were directions to Dr Lim as to how she was to perform those tasks.
From the evidence before me, including seeing Dr Lim give evidence at the hearing, I find that she is in a condition that is outside the boundaries of normal mental functioning and behaviour.[16] I also find that the psychological condition from which she is suffering arose out of her employment with ACMA. Comcare concedes this, though not that she suffers an injury for the purposes of the SRC Act.
[16] See Comcare v Mooi (1996) 69 FCR 439 at 444 per Drummond J.
Comcare has identified three actions which it says contributed significantly to the development of Dr Lim’s psychological condition:
·discussions about a voluntary redundancy (June 2010);
·Dr Lim’s performance appraisal by Ms Richardson (January 2011); and
·the events following Dr Lim’s position being declared excess (February–March 2011).
Comcare does not concede that any other actions contributed significantly to the development of Dr Lim’s psychological condition. Comcare points out that, if any one of the actions it has identified amounts to reasonable administrative action taken in a reasonable manner, and was a cause of Dr Lim’s psychological condition, then Dr Lim’s psychological condition is not an injury for the purposes of s 5A and Comcare is not liable. That is true, but it is open to me to make a finding about the effect of ACMA’s action regarding the template letters and related issues before deciding whether the exclusion in s 5A applies.
I find that Dr Lim suffered a psychological condition arising out of Ms Richardson’s dealings with Dr Lim about the use of the template letters, and about ACMA’s response to enquiries under the Telecommunications Act more generally.
The date the condition was suffered
The date that Dr Lim first suffered her psychological condition now becomes crucial. Obviously, the exclusion in s 5A cannot apply to an administrative action that occurred after the condition was suffered.
Dr Lim says that her condition was suffered in September or October 2010. Comcare says that Dr Lim’s condition was suffered on 18 March 2011, though Comcare concedes that it could have been suffered as early as 10 December 2010.
In her evidence at the hearing, Dr Lim had difficulty recalling detail of events, including events that occurred in late 2010. I am sure that this lack of recall was mostly due to her psychological condition. In a statement that she made on 10 April 2014, Dr Lim said that on 15 September 2010 she first experienced “overwhelming feelings of anxiety and fearfulness” and felt as if she was suffocating. She said that she was sure about that date, because she sent herself an e-mail on the following day. The subject heading of that e-mail was “Important records of what was said to me on Wednesdat [sic] Sep 15 2010”. In the e-mail, Dr Lim described two discussions that she had had with Ms Richardson. She then said “I found the two meetings with her a little intimidating” and noted that she was worried about one of the matters that she and Ms Richardson had discussed. Dr Lim’s e-mail of 16 September 2010 does not mention any of the symptoms that she later said that she experienced on 15 September.
At the hearing, Dr Lim said that she was not feeling quite right in October 2010. She did not see a doctor until 8 December 2010, when she was diagnosed with sinusitis. On 10 December 2010, she saw her general practitioner, Dr Maria McPhail. Dr McPhail’s notes from that day indicate that Dr Lim had been unwell, since 6 December, with a runny nose, a cough, sore ears and related symptoms, and had a viral illness. Dr McPhail noted that Dr Lim was stressed and anxious about her work for various reasons: some of those reasons relate to the issue of the template letters and ACMA’s response to enquiries; some of those reasons are discussed below. Dr McPhail also noted that Dr Lim would return to discuss her stress at work “next week when feeling better”. Dr McPhail gave Dr Lim a medical certificate for the period 10–17 December. Dr McPhail’s notes indicate that, on 15 December, Dr Lim left a message saying that she had returned to work and asking that the certificate be changed to cover the period 10–13 December. Dr McPhail issued a revised certificate.
There is no evidence that Dr Lim sought any other medical or psychological assistance until she returned to Dr McPhail on 18 March 2011. Dr McPhail’s notes indicate that they discussed Dr Lim’s stress at work. Dr McPhail diagnosed Dr Lim as suffering “adjustment reaction with depression/anxiety”. Dr Lim saw Dr McPhail again on 22 March. On 27 March 2011, Dr McPhail issued a medical certificate for workers’ compensation “in relation to the injury stated as occurring” on approximately 15 October 2010.
I am sure that Dr Lim was not completely well in September and October 2010, but I do not think that she was then suffering from the psychological condition that she later developed. She told her doctor, on 10 December 2010, that she was stressed and anxious about her work. But she returned to work after only a few days, and even arranged to have a medical certificate reduced in its period of operation. At the hearing, Dr Lim said that she did this because the Christmas break was coming up, and because Ms Richardson would be away on leave. I am sure that this is true, but I think that it demonstrates that Dr Lim was not then operating outside the boundaries of normal mental functioning and behaviour. The medical certificate that Dr McPhail issued on 27 March 2011 said that Dr Lim suffered her condition around 15 October 2010. But, as Dr Lim confirmed at the hearing, Dr McPhail included that date based on what Dr Lim had told her. In doing so, Dr McPhail was not attesting that Dr Lim suffered the condition in October 2010; she was providing the date on which “the injury [was] stated as occurring”.
I find that Dr Lim’s psychological condition was suffered on, or a few days before, 18 March 2011, when she discussed her work stress with Dr McPhail and Dr McPhail diagnosed her as suffering an adjustment reaction with depression and anxiety. I do this having regard to the evidence discussed above, without applying s 7(4) of the SRC Act.
The performance appraisal
On 31 January 2011, Ms Richardson held a formal mid-cycle performance appraisal of Dr Lim. Comcare says that this was a reasonable administrative action taken in a reasonable manner, and that it contributed significantly to the development of Dr Lim’s psychological condition. Dr Lim says that the performance appraisal was not conducted in a reasonable manner.
In the months preceding the performance appraisal, Dr Lim wrote several minutes to Ms Richardson. One of these minutes was about a proposed restructure of the Section. The minute is undated, but it would appear to have been sent in mid- to late-November 2010. In that minute, Dr Lim opposes the proposed restructure. In a minute written on 26 November 2010, Dr Lim recommended an approach to responding to correspondence expressing concerns about the location of mobile telephone towers, and attached a proposed draft response. On 3 December 2010, Dr Lim wrote a minute to Ms Richardson “[t]o respond to your request for ‘evidence’ supporting the concerns that I have raised about the ‘standard templates’ approach …” On 16 December 2010, Dr Lim wrote a minute to Ms Richardson, addressing what Dr Lim called Ms Richardson’s “verballing” of her in relation to correspondence that Dr Lim had sent to members of the public. At the hearing, Dr Lim explained that by “verballing” she meant Ms Richardson’s repeated insistence that Dr Lim adopt a particular approach to responding to enquiries. All four of these minutes reflect the difference of opinion that arose between Ms Richardson and Dr Lim, discussed above.[17] Dr Lim says that she put her views in writing so that the issues could be “addressed and resolved formally”.
[17] See [20]–[24] above.
Dr Lim says that the performance appraisal on 31 January 2011 was not conducted in a reasonable manner because Ms Richardson had not addressed the concerns that Dr Lim expressed in these minutes before the appraisal. She says that the appraisal process was “contaminated” by “apprehended bias”: that Ms Richardson could not conduct the performance appraisal in a fair manner until she had formally addressed Dr Lim’s concerns.
I do not think that Ms Richardson was required to formally address Dr Lim’s concerns. But, even if she was, I do not see how her failure to do so before the performance appraisal can have contaminated that appraisal. It is in the nature of performance appraisals that both the employee and their supervisor will go into the discussion having already formed preliminary views about the principal issue that they will discuss: the employee’s performance. It is highly likely that Ms Richardson went into the performance appraisal discussion with Dr Lim having already formed a preliminary view about Dr Lim’s performance. It is also highly likely that that view was influenced by the position that Dr Lim put in the minutes that she sent to Ms Richardson. There is nothing untoward in that. It does not amount to apprehended bias.[18]
[18] See also Comcare v Martin [2015] FCA 4 at [71] where Griffiths J said that it is wrong to “equate the doctrine of apprehended bias in administrative law with the question whether or not particular administrative action had been taken in a reasonable manner”.
Ms Richardson and Dr Lim discussed Dr Lim’s concerns at the performance appraisal. Dr Lim says that the appraisal was contaminated because Ms Richardson “‘addressed’ the ‘operational differences’ verbally” in this way. I do not think that there was anything unreasonable in Ms Richardson raising the issue at the performance appraisal.
Dr Lim also says that the performance appraisal process was “corrupted” because, before the appraisal, Ms Richardson had had discussions with ACMA’s human resources area about the possibility of Dr Lim’s position being declared excess as part of the proposed restructure. ACMA decided that Dr Lim was “potentially excess” on 23 February 2011, and she was declared excess on 25 March 2011. There is nothing unreasonable about Ms Richardson conducting the performance appraisal having already formed views about a possible restructure of the Section, and the impact of that restructure on Dr Lim. Similarly, there is nothing unreasonable about Ms Richardson seeking advice from ACMA’s human resources area about the implications of that restructure. There is nothing untoward in her having done so before the performance appraisal. In submissions and at the hearing, an issue arose about whether the process by which Dr Lim was declared excess was conducted in accordance with the relevant enterprise agreement. But that issue is not relevant to the question of the reasonableness of the performance appraisal.
It is clear that the performance appraisal contributed to the development of Dr Lim’s psychological condition. On 10 December 2010, Dr Lim told Dr McPhail that the upcoming performance appraisal was one of the reasons that she was feeling stressed and anxious at work. Ms Richardson says that the performance appraisal was “an uncomfortable conversation”. She gave Dr Lim a rating of “requires development”. Dr Lim says that she should have been given a higher rating than that: maybe not a rating of “superior”, but a rating that reflected that she had met the requirements of her job (“effective” or “fully effective”). Ms Richardson says that Dr Lim told her that she would challenge the rating. Dr McPhail’s notes from seeing Dr Lim on 18 March 2011 include “she is stressed and was given a poor review a month ago”.
For the reasons above, I find that the performance appraisal on 31 January 2011 was conducted in a reasonable manner. Because it was a reasonable appraisal of Dr Lim’s performance, it was a reasonable administrative action (s 5A(2)(a) of the SRC Act). I also find that the performance appraisal contributed to the development of Dr Lim’s psychological condition. It was not the only cause. It may not have contributed to the same extent as did the difference of opinion about the use of template letters, or the events leading up to and following Dr Lim’s position being declared excess. But Dr Lim suffered the psychological condition as a result of the performance appraisal for the purposes of s 5A.
Other administrative actions
Comcare identified two other administrative actions which it says contributed to the development of Dr Lim’s psychological condition: discussions about a voluntary redundancy; and the events following Dr Lim’s position being declared excess. A large proportion of the submissions and evidence, from both Dr Lim and from Comcare, related to these two actions. Because of the view that I have come to about the performance appraisal, I do not need to consider the effect of any other administrative actions. If only one cause of a condition satisfies the exclusion in s 5A, the exclusion applies—even if the condition had many separate causes.[19]
[19] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at [24] per Gray J, citing Hart v Comcare (2005) 145 FCR 29 at [21]–[23]. See [12] and the last dot point in [13] above.
Conclusion
Dr Lim suffered a psychological condition which arose out of her employment with ACMA. The condition was suffered (on, or a few days before, 18 March 2011) as a result of—amongst other causes—the performance appraisal (on 31 January 2011). The performance appraisal was reasonable administrative action taken in a reasonable manner in respect of Dr Lim’s employment. It follows that Dr Lim’s psychological condition is not an injury for the purposes of s 5A of the SRC Act. Comcare is not liable to pay compensation in respect of her psychological condition.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ................................[sgd]........................................
Associate
Dated 27 March 2015
Dates of hearing 11–13 March 2015 Applicant In person Advocate for the Applicant Dr Jeffrey Read Counsel for the Respondent Mr Andrew Dillon Solicitors for the Respondent Sparke Helmore
5
7
3