Re von Stieglitz and Comcare
[2010] AATA 263
•15 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 263
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5018
GENERAL ADMINISTRATIVE DIVISION ) Re Katherine von Stieglitz Applicant
And
Comcare
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member
Dr M Miller, MemberDate15 April 2010
PlaceCanberra
Decision The decision under review is affirmed. .......................[sgd].................
Professor RM Creyke, Senior Member
Dr M Miller AO, Member
CATCHWORDS
COMPENSATION – whether applicant suffered ‘mental injury’ or ‘disease’ – whether disease significantly contributed to by applicant’s employment – whether ‘reasonable administrative action’ – ‘mental injury’ requires some form of identifiable physiological change – adjustment disorder falls within meaning of ‘disease’ – applicant’s employment made a significant contribution to applicant’s adjustment disorder – whether requested independent investigator of applicant’s complaints bias - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7(4), 14
High Court of Australia Act 1979 (Cth) ss 17, 19, 26
Abrahams v St Virgil’s College [1998] TASSC 53; Wattyl Australian Pty Ltd v York [1997] NTSC 86
Anderson v Sullivan (1997) 78 FCR 380
Comcare v Chenhall (1992) 37 FCR 75
Canute v Comcare (2006) 226 CLR 535.
Comcare v Etheridge (2006) 149 FCR 522.
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536.Kennedy Cleaning Services Pty Ltd v
Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576
R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601
Department of Education and Training v Sinclair [2005] NSWCA 465
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Gilbert and Comcare [2009] AATA 224
HIH Winterthur Workers Compensation (SA) v Hickman [1997] SAWCT 17.
Re Inglis and Comcare (1997) 49 ALD 183
ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27
McManus v Scott-Charlton (1996) 70 FCR 16
Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203
Petkoska (2000) 200 CLR 286
Repatriation Commission v Webb (1987) 76 ALR 131
Rukavina v Bridgestone Australia Ltd [2005] SAWCT 79
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Workcover Corporation of South Australia v Summers (1995) 65 SASR 243
Re Xirakis and Comcare [2007] ATA 1817
Zickar v MGH Plastic Industries (1996) 187 CLR 310
15 April 2010 REASONS FOR DECISION
Professor RM Creyke, Senior Member
Dr M Miller, MemberBackground
1. Ms von Stieglitz commenced work at the High Court in 1995. She made a complaint of harassment to Mr C Doogan, the Chief Executive & Principal Registrar (CE&PR), in 2003, a complaint which was not resolved. Ms von Stieglitz found this and subsequent events at the Court stressful, and sought treatment for stress and anxiety from August 2007.
2. Ms von Stieglitz’s two-year old son needed open-heart surgery in February 2007. She took leave to be with her son and has not returned to work. On 3 April 2008, effective 20 June 2008, Ms von Stieglitz’s employment with the High Court came to an end.
3. By decision dated 16 June 2008, an application for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) was rejected, a decision affirmed on reconsideration on 23 October 2008. On 27 October 2008, Ms von Stieglitz sought further review by the Tribunal.
Legislation
The relevant legislative provisions are as follows:
Safety, Rehabilitation and Compensation Act 1988 (Cth)
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 …
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.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; …
that was contributed to, to a significant degree, by the employee's
employment by the Commonwealth or a licensee.(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or
a licensee, the following matters may be taken into account:(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
4 Interpretation
(1) In this Act, unless the contrary intention appears …
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
7 Provisions relating to diseases
(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.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
The payment of compensation for medical expenses is dealt with in section 16 of the Act and for injuries resulting in incapacity for work in section 19 of the Act.
High Court of Australia Act 1979 (Cth)
17 Administration of the Court
(1) The High Court shall administer its own affairs subject to, and in accordance with, this Act.
(2) The Court has power for the purposes of the Court to do all things that are necessary or convenient to be done for or in connection with the administration of its affairs and, without limiting the generality of the foregoing, has power:
(a) to enter into contracts;
(b) to acquire, hold and dispose of real and personal property;
(c) to take on hire, to exchange, and to accept on deposit or loan, library material, and also furnishings, equipment and goods needed for the purposes of the Court;
(d) to control and manage any land or building occupied by the Court and any adjacent land or building that is declared by Proclamation to be part of the precincts of the Court;
(e) to accept gifts, devises and bequests made to the Court upon trust and act as trustee of moneys or other property vested in the Court upon trust; and
(f) to do such other things as it is authorized by this Act to do.
(3) Any real property, and any personal property (other than money), held by the Court shall be deemed to be the property of the Commonwealth.
(4) For the purposes of the Lands Acquisition Act 1989, the Court shall be deemed to be an authority incorporated by a law of the Commonwealth.
(5) The Court may appoint committees consisting of Justices, or of Justices and other persons, for the purpose of advising the Court in relation to:
(a) the exercise of the powers of the Court under this Act; or
(b) the making of Rules of Court.
19 Functions and powers of the Chief Executive and Principal Registrar
(1) The Chief Executive and Principal Registrar has the function of acting on behalf of, and assisting, the Justices in the administration of the affairs of the High Court under section 17 and has such other functions as are conferred on him or her by this Act or are assigned to him or her by the Court.
(2) The Chief Executive and Principal Registrar has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions and, in particular, has power, on behalf of the Court, to give directions in writing for the purpose of regulating the conduct of persons on any land or in any building referred to in paragraph 17(2)(d).
(3) Where directions are given by the Chief Executive and Principal Registrar under subsection (2):
(a)a copy of the directions shall be published in the Gazette; and
(b)the directions have effect on and from the date of publication. …
26 Officers and employees
(1) The Chief Executive and Principal Registrar is to appoint such other officers of the High Court as the Court considers necessary.
(3) The Chief Executive and Principal Registrar may engage such employees as the Court considers necessary for the purposes of the Court.
(4) The terms and conditions of employment (including terms and conditions as to remuneration and allowances) of officers or employees appointed or engaged in accordance with this section are such as are determined by the Court.
(5) An appointment under subsection (1) is not a public office for the purposes of the Remuneration Tribunal Act 1973.
(6) The Chief Executive and Principal Registrar may, on behalf of the Court, arrange with an Agency Head within the meaning of the Public Service Act 1999 , or with an authority of the Commonwealth, for the services of officers or employees of the Agency or of the authority, as the case may be, to be made available for the purposes of the Court.
(7) The Senior Registrar and Deputy Registrars are to perform such duties in respect of proceedings in the Court as are assigned to them by Rules of Court, by an order of the Court or by the Chief Executive and Principal Registrar.
Issues
4. The agreed issues are:
- Does Ms von Stieglitz suffer from an ‘injury’? If so, is it a ‘mental injury’ or a ‘disease’?
- If the injury is a ‘disease’ what was the date of the injury?
- If Ms von Stieglitz suffers from a disease, was it significantly contributed to by her employment?
- Is the injury or disease not compensable because it arose as a result of reasonable administrative action?
- If so, what were the administrative action/actions?
- Were the actions lawful?
- Were the actions reasonable?
- Were they taken in a reasonable manner?
- Did Ms von Stieglitz suffer from an injury prior to any administrative action being undertaken?
·Whether the Tribunal can limit its findings to section 14 of the Act or has it power also to make findings under sections 16 and 19 of the Act?
History
5. Ms von Stieglitz commenced work at the High Court as a reporter on 2 February 1995 as a casual reporting officer. She became a permanent employee of the Court on 3 October 2000. From February 2003, she acted as Senior Reporter and was promoted permanently into that position on 6 November 2003. As such she was a section head and part of senior management. Although she was recommended for promotion by the Marshal, Mr L Howard on 14 August 2003, the letter noted some shortcomings in her performance as Acting Senior Reporter. Ms von Stieglitz responded to those matters at the time.
6. In August 2003, she reported being ‘subjected to threatening and intimidating conduct’ by her direct supervisor, the Marshal, Mr Howard. Following a complaint of harassment to Mr Doogan, the CE&PR, at a meeting in late October 2003, Ms von Stieglitz claimed that Mr Doogan refused to discuss or investigate these complaints and asked Ms von Stieglitz to withdraw them. She refused. The complaints were linked to her revision of a draft duty statement for the position of Senior Reporter over which she and Mr Howard had disagreed.
7. From that time, until November 2004, Ms von Stieglitz reported being subject to derogatory and belittling comments from Mr Howard. Ms von Stieglitz was on maternity leave from November 2004 until May 2005. On her return she was involved in trying to negotiate a number of changes in the Court Reporting Section (CRS) among other things about upgrading the classification of several positions, including that of Senior Reporter. Mr Howard and Mr Doogan did not agree with her suggestions, as she was advised by Mr Doogan in a letter dated 1 June 2006. During this period she claimed that harassment from Mr Howard continued and that she was also excluded from discussions relating to her section, had not received responses to her memos on staffing issues, and had threats to outsource her section. In December 2005, she complained about Mr Howard to Mr Doogan. No action was taken on the harassment matter but Mr Doogan did reassure her that the CRS would not be outsourced.
8. In August or September 2006, during negotiations for a new collective agreement, she claimed to have exposed serious discrepancies in the financial statements of the Court. From that time she said she was excluded from contract management which was part of her duties. On 12 October 2006, Ms von Stieglitz wrote to the Justices of the Court raising her concerns about Mr Doogan and Mr Howard and that she had requested the CRS be moved. In November 2006, her section was moved to the area under the Senior Registrar.
9. On 14 February 2007, Ms von Stieglitz went to Sydney for her two year old son’s open-heart surgery. While still on leave, she was phoned by the Senior Registrar to say that her section had been relocated to the staff kitchen as a temporary move during renovations. She said she found the timing and nature of the news disturbing. Ms von Stieglitz did not return to work at the Court.
10. On 1 May 2007 she lodged a formal complaint to Mr Doogan about workplace harassment and asked for an independent investigator to be appointed, since Mr Doogan was cited in her complaint. Mr Doogan responded on 18 May 2007 and denied that Ms von Stieglitz had previously raised the issue of harassment and said she had a history of breaching her obligations, but that the Court had taken a lenient approach in view of her difficult family circumstances. Ms von Stieglitz said in response that there had been no complaints about her performance in 25 years, and produced documents on 23 May 2007 showing she had informed Mr Doogan of the harassment to which she had been subjected since 2003. She also said she was concerned that documents about her must have been removed from the Court’s files. She advised she would provide full details of her harassment complaints with supporting documentation to an independent investigating officer. Ms von Stieglitz failed to provide the documentation following a further request by Mr Doogan on 7 June 2007.
11. On 26 May 2007, an advertisement appeared in The Canberra Times for an employment position, which appeared to be Ms von Stieglitz’s position. Following a response from Ms Rogers explaining there had been an error in the duty statement, Ms von Stieglitz also complained that the Court’s website continued to show the unamended duty statement. On 28 May 2007, she wrote to the Chief Justice, Justice Gleeson about her concerns at the actions of the Senior Registrar in lodging the advertisement. She also referred to Mr Doogan’s conflict of interest in handling the investigation of her harassment complaint.
12. On 21 June 2007 Mr Doogan wrote to Ms von Stieglitz and advised her that he had asked the CE&PR designate, Mr A Phelan, to be the independent reviewer since Mr Doogan was resigning and Mr Phelan had been appointed from outside the Court.
13. On 19 July 2007, Ms von Stieglitz informed the new CE&PR, Mr Phelan, that it was 11 weeks since she had lodged her formal complaint and no action had been taken. On 2 August 2007 Mr Phelan replied to Ms von Stieglitz and asked her to provide the documentation referred to in her letter of 23 May 2007. In her response dated 7 August 2007, Ms von Stieglitz did not do so. A further letter dated 13 August 2007 from Mr Phelan requested the documentation. On 17 August 2007, Ms von Stieglitz responded, making allegations of workplace harassment concerning other employees. An informal investigation was conducted of this allegation but no evidence was discovered.
14. On 21 August 2007, Mr Phelan responded denying irregularities in the procedure, denying harassment had occurred, again requesting production of the evidence Ms von Stieglitz had promised, and said that in the absence of such evidence her allegations ‘appear to be defamatory and wrong’. This so upset Ms von Stieglitz that she was taken to her doctor who certified her as unfit for work.
15. Following these events, Ms von Stieglitz was concerned about the effects of this dispute on her health and asked her lawyers to withdraw her formal complaint of 1 May 2007. This was done on 3 September 2007. On 18 October 2007 a letter from the Australian Government Solicitor (AGS) asked whether Ms von Stieglitz’s complaint had been withdrawn or deferred. The letter advised that if the requested documents were not provided within 7 days, the Court would regard the complaint as having been withdrawn. Ms von Stieglitz was sent a copy of the AGS letter on 29 October 2007 and noticed that it contained a reference to disciplinary action being taken against her for the allegedly defamatory statements in her complaint. This further distressed Ms von Stieglitz and her health again deteriorated sharply.
16. In a letter of 8 November 2007, Ms von Stieglitz said in effect that she rejected the findings of the investigation in the letter to her by Mr Phelan of 21 August 2007, confirmed the withdrawal of her formal complaint but said that when her health improved and her employment situation clarified she intended to take steps to resolve issues outstanding since 2003. The letter referred to her stress and anxiety. This was the first indication to the Court of the diagnosis of Ms von Stieglitz’s condition. She also complained that her son’s premature birth in 2004 was caused by stress-related complications suffered during her pregnancy in 2004, a suggestion appearing to indicate that the stress was work related.
17. Ms von Stieglitz was on leave from 13 February 2007 on long service, recreation and personal leave. Once these forms of leave were exhausted, from 27 August 2007 her applications were for sick leave. However, the certificates contained no indication of the nature of her condition and stated only that she was ‘unfit for work due to illness’. On 18 May 2007, Mr Doogan asked her to be more timely about her leave applications. On 14 December 2007, Ms von Stieglitz was directed to give leave notices as soon as reasonably practicable. However, her application for leave from 15 January to 10 February 2008 was received on 11 January 2008. Other discrepancies in her leave applications were also identified.
18. In December 2007, January 2008, February 2008 and again by letter hand- delivered on 11 March 2008, Mr Phelan directed Ms von Stieglitz to attend a medical examination. She apparently received the letter of 11 March 2008 only one hour prior to the appointment and her solicitor wrote explaining the circumstances and said Ms von Stieglitz was willing to attend at a later time. Ms von Stieglitz ignored all the letters.
19. By letter dated 16 January 2008, Ms von Stieglitz was warned that her failure to attend a medical examination could lead to disciplinary action and possible termination of her employment. Mr Phelan wrote to Ms von Stieglitz on 18 February 2008 saying he proposed to terminate her employment and invited her to comment. The letter referred to late delivery of medical certificates and absence of detail about the medical reasons for her absences; the serious and apparently unfounded allegations about the conduct of personnel in the Court; refusal to supply substantiating material about the matters alleged, followed by withdrawal of the allegation but without prejudice to reactivating the claims; lengthy absences from work including being on unauthorised leave since 12 November 2008; late applications for leave; failure to attend a medical examination on 8 February 2008; disputes about the lawfulness and reasonableness of CE&PR’s directions without supporting evidence; and refusal to return to work with no satisfactory explanation. There was some ensuing correspondence, but on 3 April 2008, Ms von Stieglitz received a letter informing her that her employment with the High Court had been terminated. Her employment was deemed to be a resignation with effect 20 June 2008.
Does Ms von Stieglitz suffer from an injury? If so, is it a mental injury or a disease?
20. Ms von Stieglitz was initially diagnosed with anxiety, depression and post traumatic stress disorder. Subsequently the diagnosis was changed to an adjustment disorder with anxiety and depressive features and this diagnosis was accepted by both parties. The principal issue is whether a condition so described is a ‘mental injury’ or a ‘disease’. Ms von Stieglitz contended that the adjustment disorder was a ‘mental injury’; Comcare have argued that the condition is more appropriately categorised as a ‘disease’.
21. Section 5A of the Act defines ‘injury’ in two senses. ‘Injury’ means either ‘a disease suffered by an employee; or an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment’; or ‘an aggravation of a physical or mental injury (other than a disease) suffered by an employee’. The primary meaning of 'injury' is expansive. Although the meaning is exhaustive, since it covers a 'disease', a 'physical or mental injury', or an ‘aggravation of a physical or mental injury’[1] these subordinate terms or expressions in combination cover a broad range of disorders. For example, ‘disease’ is defined to mean an ‘ailment’, or an ‘aggravation of any such ailment’[2] and an ‘ailment’ is defined as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’, a description which is plainly broad in compass (see later). The reading of the legislation is confirmed by the High Court in Canute v Comcare[3] which said of the primary meaning of ‘injury’:
First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’.[4]
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A.
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B.
[3] Canute v Comcare (2006) 226 CLR 535.
[4] Id at [10] (per Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ).
22. The extract indicates that the primary meaning of 'injury' being 'the resultant effect of an incident or ailment upon the employee's body' is potentially very broad.
23. In its secondary sense, an ‘injury’ may be either a ‘physical or a mental injury’. This secondary meaning of 'injury' is much narrower and in this context, 'injury' bears its well-established common law meaning as discussed in Comcare v Etheridge[5] of 'a sudden or identifiable physiological change including a change internal to the body'.[6] Given the conjunction of ‘physical’ with ‘mental’ in the expression ‘physical or mental injury’, there is no reason to doubt that ’injury’ bears this meaning in relation to both kinds of injury. This interpretation has the effect of limiting ‘mental injury’ to conditions involving sudden or identifiable physiological change to the mind, such as an epileptic fit. That leaves mental disorders which are not due to physiological change but are psychological in nature to be covered by the definition of ‘disease’.
[5] Comcare v Etheridge (2006) 149 FCR 522.
[6] Id at [35] (Spender and Nicholson JJ agreed with Branson J) See also Kennedy Cleaning Services Pty Ltd vPetkoska (2000) 200 CLR 286 per Gleeson CJ and Kirby J at [35]-[36]; and Zickar v MGH Plastic Industries (1996) 187 CLR 310.
24. Support for this interpretation is provided by section 5A(1)(b) which excludes a ‘disease’ from the meaning of ‘physical or mental injury’ thus requiring differentiation between the meanings of these three terms.[7] ‘Disease’ is clearly able to encompass psychological conditions since it is defined to include an ‘ailment’ and in turn ‘ailment’ means ‘any physical or mental ailment, disorder, defect or morbid condition’. As Drummond J said in Comcare v Mooi, disorders of a psychological, rather than physical nature, fall within the meaning of ‘disease’ since:
… so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition.[8]
[7] Comcare v Mooi (1996) 69 FCR 439 at 442 (per Drummond J).
[8] Id at 443-444.
25. Counsel for Ms von Stieglitz contended that the distinction between a ‘physical injury’ and a ‘mental injury’:
comes down to whether the adverse impact on the body or mind was new in the sense of not being latent in the body and whether it was mediated via some external or environmental agency.
26. Applying that test he concluded:
In the present case the adjustment disorder is by definition an adverse mental reaction to an external stimulus in the nature of an assault on the psychology of the individual. … [If] the category of ‘mental injury’ is to be given any content, then an adjustment disorder must be close to a paradigm case of a mental injury.
27. Counsel for Comcare said that deciding whether something is a ‘mental injury’ or a ’disease’ requires taking into account the following factors:
·A mental injury connotes some sudden interference with cognition, consciousness or perception of a kind which is clinically significant and redolent of ‘unwellness’ in much the same way that ‘disease’ is redolent of being ‘sick’: see Drummond J in Mooi;
·Mere sudden alternations in perceptions, cognition or consciousness will not suffice – eg feeling distressed, angry, light-headed or dizzy, sudden onsets of tiredness etc; and
·The need for a sudden change to the underlying pathophysiology is such that many psychiatric conditions would be unlikely to meet the definition of mental injury. Epileptic fits and psychotic episodes might be examples of mental injuries.
28. The Tribunal finds, given the elaborate definitions of 'injury', ‘disease’ and ‘ailment’ in the Act, and the legislature’s indication of the need to differentiate between these definitions, that a ‘mental injury’ requires some form of sudden or identifiable physiological change. It is not enough that there be an ‘external stimuli’. There must be ‘some sudden [or identifiable] change to the underlying pathophysiology’.
29. Applying these principles to the facts also requires taking into account of the description of ‘adjustment disorder’ within the Diagnostic and Statistical Manual of Mental Disorders (DSM IV). DSM IV says:
The essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioural symptoms. … The clinical significance of the reaction is indicated either by marked distress that is in excess of what would be expected given the nature of the stressor or by significant impairment in social or occupational (academic) functioning.[9]
[9] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision, 2000) 679.
30. The requirement for observable pathology was not taken into account in the contention by counsel for Ms von Stieglitz that an adjustment disorder falls within the definition of a ‘mental injury’. The description of an adjustment disorder in DSM IV indicates that there is no requirement that the disorder either produces or is due to any sudden or identifiable physiological change. Nor was there evidence of any such change in the symptoms described by Ms von Stieglitz or the medical experts who provided evidence on her condition. For these reasons, the Tribunal finds that an adjustment disorder falls within the meaning of ‘disease’ not ‘mental injury’.
What was the date of the injury?
31. Section 7(4) requires identification of the date of injury in a case when a claim is being made for a ‘disease’ or an ‘aggravation of a disease’. Ms von Stieglitz, in her claim for workers’ compensation dated 29 February 2008, identified her date of injury as 22 August 2007, being the first date on which she sought medical treatment for her condition. The form noted, however, that she had previously suffered a similar symptom namely, ‘stress since 11 August 2003’. In her written submission she contended that the date of injury was prior to August 2007.
32. The first medical recording of a stress-related illness appears in the clinical notes of Dr E Pickup, Ms von Stieglitz’s treating general practitioner, of 17 November 2003 which states: ‘?? Check – work stresses – works in transcript at High Court. Tension with supervisor, sleep – varies. 3 children 17, 14, 9 months … weight discussed’. The Tribunal notes that it has no confirmation of the accuracy of the 2003 record, since the clinical notes of Dr Pickup for 2003 are not included in the Tribunal’s documents. The earliest entry in Dr Pickup’s clinical notes provided to the Tribunal begins at 13 October 2004. On 22 August 2007, Dr Pickup’s notes state: ’Blood Pressure: 174/104 [her pulse reading], 78 checked work stress at High Court seeing lawyer’. Dr Pickup did not prescribe an anti-depressant for Ms Von Stieglitz until 7 December 2007.
33. Dr E Evans, psychologist, in his report of 9 April 2008 concerning Ms Von Stieglitz, commented that her mental injury had a progressive development commencing in 2003 and covered various workplace disputes, including seeing what she understood was her job being advertised on 26 May 2007, and her distress referred to in her letters of 15 May 2007, 11 June 2007 and 21 June 2007. However, his report noted that on 21 August 2007, following receipt of the letter from Mr Phelan in which he said allegations she had made in recent communications ‘appear to be defamatory and wrong’ she was so distressed that her husband rushed her to the doctor who found her unfit to return to work. He concluded ‘Although the earlier stressors date back to 2003, it appears only recently that Ms von Stieglitz exhibited a marked level of distress’.
34. In evidence to the Tribunal, Ms von Stieglitz refers to feeling distressed as a result of several interchanges in May and June 2007 with the Registrar and others at the High Court. However, she noted in a letter of 11 June 2007 to Comcare that ‘I have taken practical steps to avoid suffering a psychological injury’. In other words, although she was aware at that time that she was under stress, she had ensured that stress was under control. By contrast, following the letter from Mr Phelan dated 21 August 2007 Ms von Stieglitz said ‘I felt like I had gone into meltdown, like some one had just run me over with a tank’. She went on, ‘I just went to pieces … I felt physically ill. … I know I felt sick’. Her reaction was sufficiently extreme to lead her husband to take her to the doctor. In other words, her reactions to the stress became noticeably more pronounced.
35. In his report of 8 April 2008, Dr Prior, consultant psychiatrist, took a history of ‘stress’ since 2003, but noted that there was a ‘significant exacerbation of her symptoms’ following a warning about disciplinary action that was contained in a letter from Mr Phelan to Ms von Stieglitz of 29 October 2007. There are no other medical reports on which to rely.
36. To qualify as a ‘mental injury’ or ‘disease’ Ms von Stieglitz’s reaction must be ‘outside the boundaries of normal mental functioning and behaviour’.[10] In the absence of any medical records relating to mental distress of this order prior to 22 August 2007, including any records of treatment, for example, with anti-depressants prior to that date, and in light of Ms von Stieglitz’s pronounced reactions in August 2007, the Tribunal finds that the date of injury was 22 August 2007.
Was the ‘disease’ significantly contributed to by Ms von Stieglitz’s employment?
[10] Comcare v Mooi (1996) 69 FCR 439 at 444.
37. For her adjustment disorder to be compensable the condition must have been ‘contributed to, to a significant degree’, by Ms von Stieglitz’s employment.[11] That test has been authoritatively established to mean that the contribution must be more than de minimis, that is, ‘substantial’ or ‘considerable’, albeit the contribution need not be the sole, dominant or proximate cause of the disease.[12]
[11] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B. Definition of ‘disease’.
[12] Comcare v Sahu-Khan (2007) 156 FCR 536.
38. The parties have conceded that Ms von Stieglitz’s employment contributed in a significant degree to her adjustment disorder. The history of this application, including the medical evidence of the impact of certain events in 2007 on Ms von Stieglitz’s functioning, and in light of her testimony that in previous employment she had experienced no complaints about her performance nor had she been in any conflict with her employers, the Tribunal finds that Ms von Stieglitz’s employment at the High Court of Australia made a significant contribution to her adjustment disorder.
Is the injury or disease not compensable because it arose as a result of reasonable administrative action?
39. In deciding this issue, subsidiary questions are: what were the administrative action or actions; were those actions lawful; were the actions reasonable; and were they taken in a reasonable manner?
‘Administrative actions’
40. ‘Administrative action’ is defined section 5A(2):
(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.
41. The Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 stated:[13]
The SRC Act aims to prevent compensation claims being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of reasonable disciplinary action or a failure to obtain a promotion, transfer or benefit in connection with the employee’s employment. …
Objectives …
A further objective, through the exclusionary provisions, was to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation. Achieving these objectives would restore Parliament’s original intention regarding the operation of these provisions.
[13] At pp iv-v.
42. What amounts to ‘administrative action’ is defined only to the extent of the examples given in section 5A(2). These refer to performance appraisal, counselling, suspension or disciplinary action and 'anything done in connection with' any of these examples.[14] The examples are not exhaustive and the words 'in connection with' have been interpreted as words which 'have an ambulatory significance capable of a wide range of applications.’[15] In other words, ‘administrative action’ is capable of having a broad meaning, an implication which is supported by the Explanatory Memorandum.
[14] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(2)(e).
[15] Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 at [106] (per Black CJ, French and Weinberg JJ).
43. To date, the meaning of these descriptions has largely been based on cases arising under the expression ‘administrative action’ in comparable legislation, in particular in South Australia, the Northern Territory and in Tasmania.[16] In summary, the cases establish that administrative action can be constituted by a series of actions as opposed to merely one action. But if the injury arises from the worker’s inability to comply with the ordinary demands of the workplace – for example, the nature of the work causes stress - rather than from some specific instruction or demand of the employment, the expression has no application. As Doyle CJ said in Workcover Corporation of SA v Summers:
[T]he words … ‘administrative action’ do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties….[17]
[S]tress caused by an inability to cope with the job itself … is not stress which arises wholly or predominantly from administrative action taken by the employer in connection with the worker’s employment.[18]
[16] Workcover Corporation of South Australia v Summers (1995) 65 SASR 243; Abrahams v St Virgil’s College [1998] TASSC 53; Wattyl Australian Pty Ltd v York [1997] NTSC 86; HIH Winterthur Workers Compensation (SA) v Hickman [1997] SAWCT 17.
[17] Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 at 247.
[18] Ibid at 248.
44. In other words, ‘administrative action’ must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer. Applying these principles to the circumstances of Ms von Stieglitz, these administrative actions will cover matters while she was at work prior to February 2007, and since then, principally, but not exclusively, to written communications with Ms von Stieglitz. The Tribunal is, however, not confined to the correspondence since 14 February 2007 when she went on leave, nor to the letter on 21 August 2007 which triggered Ms von Stieglitz’s adjustment disorder, since the cumulative effect of administrative actions over the preceding period may also be relevant. Both parties have conceded that events after 22 August 2007 did not make any contribution to Ms von Stieglitz’s injury. The Tribunal agrees that the concession is appropriate, while noting that events which post-date a triggering incident may be relevant if they throw light on preceding events.
45. The administrative actions which involve either a course of conduct or a specific incident can be grouped under the following headings:
· 2003/05: Claims of workplace harassment;
· 2005/06: Management of Court Reporting Section (CRS);
· 2007: Advertisement in The Canberra Times;
· 2007: Handling of formal complaint including request for appointment of independent investigator; and
·2007: Letter of 21 August 2007.
Were those actions lawful?
46. Two aspects of the administrative action were argued by counsel for Ms von Stieglitz to be unlawful: the failure of Mr Doogan to disqualify himself from initial involvement in the investigation of Ms von Stieglitz's complaint against him; and the legality of the direction issued by Mr Phelan. There is no dispute that under workplace relations rules and in accordance with the general powers of administration granted to the CE&PR 'to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions',[19] Mr Doogan had legal authority to handle the complaints against Mr Howard in 2003-05, to manage the CRS over 2005-2006, and to issue the advertisement of the Court Reporting Supervisor in The Canberra Times on 26 May 2007. There is no issue of unlawfulness in relation to these administrative actions.
(a)2007: Initial handling of formal complaint including Mr von Stieglitz’s request for appointment of independent investigator.
[19] High Court of Australia Act 1979 (Cth) s 19(2).
47. On 12 October 2006, Ms von Stieglitz sent a memorandum to the Justices informing them that she was taking legal advice about her treatment by Marshal Howard and Mr Doogan. On 21 March 2007 she followed this with a further memorandum to Chief Justice Gleeson which he acknowledged on 22 March 2007 and in which she repeated her concerns about Mr Howard and Mr Doogan. The Tribunal assumes that the memoranda of 12 October 2006 and 22 March 2007 would have been passed to Mr Doogan given that he had the function under section 19 of the High Court of Australia Act 1979 (Cth) of 'acting on behalf of, and assisting, the Justices in the administration of the affairs of the High Court'.[20] In support of that assumption, Mr Doogan in his memorandum to Ms von Stieglitz of 21 June 2007 notes: 'The Justices have been fully informed at all stages in relation to your continuing correspondence to both the Chief Justice and myself'.
[20] High Court of Australia Act 1979 (Cth) s 19(1).
48. The effect of this correspondence is that at least from October 2006 Mr Doogan would have been aware that Ms von Stieglitz had made complaints against himself as well as Mr Howard. However, as Ms von Stieglitz provided no details of these complaints at that time, he would not have been informed of the subject of those complaints and hence there was no need for him to disqualify himself. It is not until 1 May 2007 that a formal complaint was lodged by Ms von Stieglitz against his conduct. In that memorandum, Ms von Stieglitz requested as a matter of natural justice that an independent person be appointed to investigate the claims. A number of matters affecting Mr Doogan were also outlined in the 1 May 2007 letter. These included that he had not acted on her complaint that she had been subjected to 'ongoing passive aggressive harassment' on the part of the Marshal; a complaint that the move of the CRS to the CE&PR's Branch which had been arranged by Mr Doogan, had been 'arbitrary'; and that this move had adversely affected her career advancement. There is also a reference in the memorandum to her seeking advice on whether Mr Doogan had breached his duty of care under the Occupational Health and Safety (Commonwealth Employees) Act 1991 (Cth), in that Mr Doogan had not taken action to protect Ms von Stieglitz’s health and safety in relation to her complaints about the former Marshal who had an alleged history of 'problems' with other female section heads, one of whom had left and another of whom had been on leave since June 2006.
49. On 18 May 2007 Mr Doogan responded to the complaints. The issue is whether he should have replied in such detail because his responses would give rise to a reasonable apprehension of bias. He included in his responses a note that until he had details of who was involved in the alleged harassment since April 2006 and what form that harassment took he was unable to identify the persons and give them an opportunity to respond. He also rejected any suggestion that he had refused to discuss any harassment complaints in 2003 noting that it is now difficult to investigate such matters four years after the events. He denied any recollection of complaints of harassment in 2003 and said he would have taken action had he been aware of them. He denied that his recommendation for the relocation of the CRS to the CE&PR's Branch had been arbitrary since he had consulted closely with those involved and would have included Ms von Stieglitz had she been at work. He also rejected any suggestion that the Marshal had not had good relations with female section heads, as illustrated by Mr Howard's appointment and then promotion of Ms von Stieglitz. He concluded with a request for her succinctly to state her complaint, her grievance and what remedy she was seeking. On receipt of that information he said he would be in a position 'to make a properly informed decision on your request'.
50. In a further memorandum of 7 June 2007, he repeated his request for further details of the alleged harassment and noted that he had identified an independent person to handle the investigation but needed specifics of the complaints so that he could decide whether an investigation was warranted. In that context, he mentioned that he had carried out some informal investigation to identify who might have harassed Ms von Stieglitz but without results. On 21 June 2007, he responded to a further memorandum of Ms von Stieglitz dated 23 May 2007, in which she had requested that he inform the Chief Justice of her allegations, and confirmed that the Chief Justice was fully informed. He then identified Mr Phelan as the investigator of the complaints and said he was handing the matter to him and would not be corresponding further with her. Mr Doogan's term as CE&PR came to an end in July 2007. Mr Phelan was his successor but was appointed from outside the Court.
51. The Tribunal finds for the reasons which follow that Mr Doogan did not act unlawfully in these interactions with Ms von Stieglitz in not disqualifying himself at an earlier time in the process. Although he was on notice that he was the subject of a complaint from October 2006, he was not aware of the substance of the complaints until 1 May 2007. At that point it became apparent that there was no complaint of harassment against him in person. At most the complaint was that as Chief Executive he had a vicarious responsibility under his general duty of care for his employees to investigate such complaints and he had failed in that duty. For that reason it was appropriate and not unlawful that in the absence of any information from Ms von Stieglitz about the names of those involved from 2003 in her harassment claim he informally tried to identify persons who might have harassed Ms von Stieglitz or known something about her alleged harassment, so he could decide whether there were sufficient grounds to appoint an investigator.
52. The Tribunal notes that the Workplace Diversity Program states that a pre-requisite to a formal complaint is that the alleged harassment ‘is of a sufficient serious nature’.[21] That requirement invites some preliminary inquiries. The Tribunal finds that it is not unlawful for a person authorised to manage complaints to satisfy themselves before taking steps under those procedures that the complaint has substance. Even in cases in which the complaint includes the person charged with this function, it is not unlawful for that person to undertake preliminary inquiries before implementing the procedures. To decide otherwise would result in considerable administrative inconvenience and open the way for unsubstantiated charges to be used to remove key persons in the complaints processes.
[21] High Court of Australia Workplace Diversity Program 2002-2005, at 13.
53. By 7 June 2007 Mr Doogan had identified someone as the potential investigator. Since the functions of the CE&PR covered matters of court administration including management of personnel, it was appropriate that he made that appointment. By 21 June 2007, just prior to his leaving the Court, Mr Doogan informed Ms von Stieglitz that he would no longer be involved in the matter. After his 18 May 2007 memorandum Mr Doogan made no further attempts to refute any of Ms von Stieglitz’s claims, confining his correspondence with her to making repeated requests for the details of the complaints of harassment he had sought in his 18 May memorandum.
54. The test for bias requires two elements: identifying what behaviour might lead to a perception that the person against whom the claim is made might not deal with the question on other than its legal or factual merits; and showing how this behaviour is connected as a matter of logic with the biased outcome.[22] The relevant behaviour is this instance is two-fold: Mr Doogan’s responding in detail in his memorandum of 18 May 2007 to Ms von Stieglitz formal letter of complaint of 1 May 2007; and continuing correspondence with her in the matter until 21 June 2007. The Tribunal has found that the second example of Mr Doogan’s behaviour, namely, taking steps to press Ms von Stieglitz until 21 June for details of her complaints, and in the absence of any information from her about details, seeking as a preliminary matter to identify persons who might provide that detail to satisfy himself that the complaint had substance, would not have raised a perception of bias since this was a necessary but merely procedural step prior to the appointment of an independent investigator.
[22] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 (Gleeson CJ, McHugh, Gummow & Hayne JJ).
55. His responding to her memorandum of 1 May 2007 in detail may have raised such a perception had he been the ultimate investigator or had there been evidence that he passed on the details of this response to the independent investigator when appointed. There is no such evidence. Indeed, Mr Phelan gave evidence that Mr Doogan was not present when he assumed the CE&PR position, that Mr Doogan had made only the most general reference to the matter in the handover, and simply left the correspondence for Mr Phelan on his arrival. The Tribunal has no reason to doubt Mr Phelan’s truthfulness about this matter.
56. In those circumstances, and given the appointment of an independent investigator, neither examples of Mr Doogan’s behaviour could be said to have impacted adversely on any outcome in Ms von Steiglitz’s case. In the context of the claim of bias, since Ms Von Steiglitz withdrew her complaints, no findings were made on these issues and it is only if the steps Mr Phelan took to terminate Ms von Stieglitz’s appointment could be said to be influenced by these actions by Mr Doogan, that any biased outcome is relevant. The grounds for that termination only state, as relevant, that Ms von Stieglitz made some allegations of harassment which were not substantiated and in the absence of her providing details that is a true statement. On that basis, any suggestion that Mr Phelan’s termination of her appointment could be related to the facts surrounding Mr Doogan’s appointment of the investigator is far-fetched. For these reasons, the Tribunal finds that none of these steps indicated any breaches of Mr Doogan’s obligation of fairness as CE&PR, nor would they have raised a reasonable apprehension of bias.
(b) 2007 Direction by Mr Phelan
57. The second complaint of unlawful behaviour relates to the issue of a direction by Mr Phelan to Ms von Stieglitz to respond promptly to the three requests for details of the complaints of harassment referred to in Mr Doogan's memorandum of 18 May 2007. Mr Phelan had been appointed to investigate the matter in his position as CE&PR. He commenced that investigation following his appointment as CE&PR in July 2007. On 2 August 2007 he had written to Ms von Stieglitz requesting documentation in support of her allegations of workplace harassment in order that he could address her complaints. He wrote again on 13 August 2007 repeating the request. Responses from Ms von Stieglitz on 7 August 2007 and on 17 August 2007 did not contain the information sought. Mr Phelan wrote a detailed letter to her on 21 August 2007 including the direction referred to earlier. The issue is whether that direction was lawful.
58. There are at least two sources of the direction power for a CE&PR. Both are found in section 19(2) of the High Court of Australia Act 1979 (Cth). Section 19(2) contains an explicit power to issue a direction in writing 'for the purpose of regulating the conduct of persons' on High Court premises. That power of direction, when exercised, must be notified in the Commonwealth Gazette.[23] No evidence was provided that a formal direction of that nature had been made.
[23] High Court of Australia Act 1979 (Cth) s 19(3).
59. The second source of the direction power is also found in section 19(2) of the Act and is incidental to the 'power to do all things that are necessary or convenient to be done for on in connection with the performance of his or her functions'. The ambit of the authority incidental to the 'necessary or convenient' power is to give directions provided they relate to lawful functions, that the direction is lawful, and, if it relates to an employee, that it falls within the scope of the contract of employment, and is reasonable.[24] The functions of the CE&PR as listed in section 19(1) of the High Court of Australia Act 1979 (Cth), are to assist the Justices in the administration of the affairs of the High Court as listed non-exhaustively in section 17 of the Act.
[24] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per Dixon J; Anderson v Sullivan (1997) 78 FCR 380 per Finn J at 396-399.
60. There is no doubt that a direction to provide details of a complaint made by an employee of the Court claiming to have been harassed by another employee of the Court so that the complaint may be investigated is a proper subject of a direction by the CE&PR. The CE&PR has a duty of care to employees of the Court under the Occupational Health and Safety Act1991 (Cth). The CE&PR is also responsible for ensuring there is resolution of claims of workplace harassment under the High Court's Workplace Diversity Program and of grievances under the dispute settlement procedures of the High Court Administration Collective Agreement 2006-2009. There is also a High Court Code of Conduct and a Values statement which had been sent to all High Court employees which mirrors the Code of Conduct and Values made under the Public Service Act 1999 (Cth) and embodies the common law right of a senior manager to give directions. That Code of Conduct states that employees' 'general responsibilities ... in the course of ... employment' include that they 'comply with any lawful and reasonable direction given by someone in the court'.
61. Whether that Code of Conduct is made a term of the contract of employment is not to the point. It is clearly a policy document applying to staff and was distributed to all employees, and unless that policy is unlawful or unreasonable it is lawful. The Tribunal notes that this is a common form of injunction attached to institution and agency policies and there is authority that a policy of this kind can be the subject of a direction.[25] As a consequence, the Tribunal does not need to determine whether the direction was specifically authorised by Ms von Stieglitz's contract of employment.
[25] Anderson v Sullivan (1997) 78 FCR 380.
62. Given these sources of authority for the direction, the Tribunal has found that the direction was lawful in that it was within power. The direction was also reasonable. The reasonableness of the direction is assessed against the history of the complaint. As early as her memorandum of 1 May 2007, repeated in her memorandum on 23 May 2007, Ms von Stieglitz had maintained she was prepared to provide full details of her complaint of harassment, with supporting documentation, to an independent investigating officer. She was advised on 7 June 2007 that an independent investigating officer had been identified, but made no efforts to supply the material at that time. When requested to do so on 2 August 2007 by Mr Phelan following his appointment she again did not provide the promised material. This position continued following his further request in a letter of 13 August 2007.
63. In the face of this continuing refusal to provide the details promised in order that the investigation could take place, and in light of the longevity of the matters involved, spread over four years from 2003 to 2007, it was a reasonable and not disproportionate response to the ends to be achieved[26] to direct Ms von Stieglitz to produce the information which was the essential source material which would enable the long-delayed investigation to take place.
‘Reasonable administrative action taken in a reasonable manner’
[26] Anderson v Sullivan (1997) 78 FCR 380 at 398.
64. The principal issue is whether these administrative actions are 'reasonable' for the purposes of section 5A(2) and have been taken in ‘a reasonable manner’. Counsel did not focus on which were the relevant paragraphs in section 5A(2). The Tribunal considers that the administrative actions identified would fall at least within section 5A(2)(a) ‘a reasonable appraisal of the employee’s performance’, section 5A(2)(d) ‘a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment’, and section 5A(2)(e): ‘anything reasonable done in connection with an action mentioned in paragraph (a)… or (d)’.
65. However, the examples in section 5A(2) are not exhaustive and the Tribunal can take cognisance of other matters which fall within the concept of ‘administrative action’. In particular, the Tribunal notes that there is no evidence that formal disciplinary action was taken against Ms von Stieglitz. At the most, the actions taken relied on the grievance procedures in the High Court’s Workplace Diversity Program 2002-2005 and 2006-2009, the High Court Administration Collective Agreement 2006-2009, and the High Court’s Code of Conduct. No copy of the collective agreement applying prior to 2006 was provided to the Tribunal. However, the Tribunal has assumed that a similar agreement was in force in the preceding three years. This assumption is supported because a complaint by Ms von Stieglitz against Mr Howard in 2003 related to her denial that she was not prepared to accept the need for the Senior Reporter to have a ‘commitment to strategies for continuous improvement’. A provision in these terms is to be found in clause 38 of the 2006-2009 agreement and in light of the reference to this requirement in 2003, it can be assumed also to be in the preceding agreement.
66. What is ‘reasonable disciplinary action’ must be assessed in light of the rules of conduct or behaviour which apply to and are enforceable against an employee by virtue of their employment by the Commonwealth.[27] In Ms von Stieglitz’s case these included the High Court of Australia Act 1979 (Cth), her contract of employment, the High Court's Code of Conduct and Values documents, and the High Court’s Workplace Diversity Program 2002-2005, revised for the period 2006-2009. The Tribunal notes that it has not cited the terms of Ms von Steiglitz's contract of employment as Senior Reporter, but this document is not critical.
[27] Comcare v Chenhall (1992) 37 FCR 75.
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.[28] What is reasonable is assessed objectively and relates to the specific conduct involved[29] in light of the process overall.[30] 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,[31] of the employee concerned.[32] There must be nothing ‘untoward’ about the actions involved,[33] and the administrative action must not be ‘irrational, absurd or ridiculous’.[34] 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.[35]
[28] Comcare v Chenhall (1992) 37 FCR 75; McManus v Scott-Charlton (1996) 70 FCR 16 at 21-22; Re Wheeler and Reserve Bank of Australia (1989) 17 ALD 574; Re Inglis and Comcare (1997) 49 ALD 183; Re Xirakis and Comcare [2007] ATA 1817; Rukavina v Bridgestone Australia Ltd [2005] SAWCT 79.
[29] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[30] Department of Education and Training v Sinclair [2005] NSWCA 465 at [97].
[31] ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27.
[32] Rukavina v Bridgestone Australian Ltd [2005] SAWCT 79.
[33] Re Gilbert and Comcare [2009] AATA 224 at [33] (per DP Hack).
[34] Repatriation Commission v Webb (1987) 76 ALR 131 at 135 (per Beaumont J).
[35] Re George and Telstra Corporation Ltd [2009] AATA 731 at [22] (per Dr Campbell).
68. These principles must be applied to the administrative actions identified. The Tribunal notes that the taking into account of Ms von Stieglitz's emotional state will be given minimal weight since the evidence indicates that it was not until November 2007, that is, after the period being considered in this decision, that High Court officials were provided with a diagnosis of her condition. Prior to that time, although Ms von Stieglitz had provided medical certificates for some months of her absences, those certificates had stated only that she was unfit for work due to illness. In the early months of her absence, the assumption was that she was absent principally to look after her baby son following his open heart surgery. Not long after his birth, Ms von Stieglitz’s husband had apparently telephoned the Court to inform personnel that his wife would be away ‘indefinitely’ but had not been more explicit. In those circumstances the medical reason for her absences, when this eventuated, and the details of her medical diagnosis were not something of which either Mr Doogan or Mr Phelan were aware until late 2007.
2003/05: Claims of workplace harassment
69. On 17 September 2003 Ms von Stieglitz wrote to Mr Doogan expressing her concerns about the behaviour towards her by the Marshal of the Court, Mr Howard. On 16 October 2003, Mr Doogan wrote to the Marshal advising him of the complaint, with a copy to Ms von Stieglitz. The Marshal responded on 17 October 2003.
70. Prior to these events, however, the Marshall had written to Mr Doogan on 14 August 2003 proposing that Ms von Stieglitz be promoted into the position of Senior Reporter, a position in which she had been acting. The letter of recommendation, however, noted some shortcomings in her performance while acting in the position due to her lack of confidence in her managerial role but noting improvement in her attitude and performance and expressing confidence in her becoming fully effective. There were subsequent discussions and memoranda about these concerns and Mr Doogan on 5 November 2003 agreed to Ms von Stieglitz being promoted noting that ‘the shortcomings she is said to have no longer exist’.
71. As a preliminary to that appointment there had been discussions between Ms von Stieglitz and Mr Howard about the duty statement for the position. Ms von Stieglitz was asked to sign a memorandum of these discussions on 10 July 2003 which she was unwilling to do. This reluctance was apparently interpreted as an unwillingness on her part to agree that the Senior Reporter position had an obligation of continuous improvement. These discussions impinged on the recommendation that Ms von Stieglitz be permanently appointed as Senior Reporter. On 17 September 2003, therefore, Ms von Stieglitz had included in her communication with Mr Doogan that she was committed to continuous improvement as evidenced by her inclusion of the obligation in her draft of the duty statement for her position. In that communication she also listed further incidents of workplace harassment.
72. Mr Doogan then arranged a meeting on 30 October between himself, the Marshal and Ms von Stieglitz to discuss these issues. Initially Ms von Stieglitz asked that she be accompanied by another person. Mr Doogan said it would be unnecessary since this was not a disciplinary meeting. According to his evidence the relevant support person had also declined to act since he too believed it was unnecessary.
73. At that meeting Ms von Stieglitz alleged that Mr Doogan refused to discuss or investigate the complaints in her letter of September 2003 and asked Ms von Stieglitz to withdraw them which she refused. A further memorandum from Ms von Stieglitz was sent on 30 October 2003 noting examples of workplace harassment and asking that these be addressed. There is no indication of a response. From that time until Ms von Stieglitz went on maternity leave between November 2004 and May 2005 she claimed she was subject to derogatory and belittling comments from Mr Howard.
74. The Tribunal does not find these events were unreasonable administrative action. Mr Doogan responded reasonably promptly to Ms von Stieglitz’s complaint of September 2003 and had arranged a meeting to discuss the matter by 29 October 2003. In doing so, he had dealt ‘promptly’ with that incident as required of supervisors under the Workplace Diversity Program 2002-2005.[36] In the meantime, Ms von Stieglitz’s concerns about signing a record of meeting on the terms of her appointment were addressed and her appointment as Senior Reporter was confirmed in early November 2003. Although Ms von Stieglitz said she continued to experience harassment from Mr Howard, she made no further complaint prior to her maternity leave in November 2004, nor did she continue in this period to press for an investigation into her complaints of September 2003.
[36] High Court of Australia, Workplace Diversity Program 2002-2005 at 12.
75. In these circumstances, since the complaint had apparently been triggered by the dispute between Ms von Stieglitz and Mr Howard about the terms of her duty statement, and this had been settled, and Mr Howard had recommended her for promotion and she had been confirmed in the position, it was not unreasonable for Mr Doogan to consider the basis of the September complaint had been resolved and to take no further action. In particular the Tribunal notes that in her memorandum to Mr Doogan of 30 October 2003, Ms von Stieglitz links her September 2003 complaint about the Marshal’s conduct with her request for ‘an independent and objective appraisal of my work performance and suitability for promotion’. On that basis, her promotion would appear to have overtaken the need to respond to her complaint and the failure to deal with them at the time was not unreasonable administrative action, nor was it taken in an unreasonable manner.
2005/06: Management of Court Reporting Section (CRS)
76. Upon her return from maternity leave, Ms von Stieglitz was involved in disputes about the pay scale for court reporting staff, refusals to respond to memoranda on staffing issues, threats to outsource her section and her request that the Court Reporting Section (CRS) be moved to the Chambers of the Chief Justice. In December 2005, among other things she complained again to Mr Doogan about Mr Howard.
77. Mr Doogan met with Ms von Stieglitz on 16 December 2005 and reassured her that the court reporting service would not be outsourced. Ms von Stieglitz thanked Mr Doogan for his reassurance but maintained her concerns about the need to reclassify positions in the court reporting section (CRS) and the location of the CRS within the Marshal’s section. On 1 June 2006, Mr Doogan responded to these matters, rejecting, with reasons, relocation of the CRS to the Chambers of the Chief Justice. He also said there was no call for the upgrading of positions given three classification reviews over the previous 15 years, the last being in 2004. However, he offered to institute an independent comparison between the work of the CRS staff and Hansard staff. For financial reasons, the comparison exercise did not go ahead. In addition, on 8 November 2006 Mr Doogan did agree to move the CRS from the Marshal to the Registrar’s section.
78. The Tribunal considers these interactions are examples of areas of disagreement about personnel and organisational matters which frequently arise within institutions or agencies. Although Mr Doogan took around six months to respond to the memorandum, he did attempt to meet one request at that time, namely, the undertaking of a workload comparison between Hansard reporting staff and the Court’s reporting staff, and he did respond to a second of Ms von Stieglitz's requests with the relocation of the CRS. Although this did not eventuate for some 11 months from the date of the request, this is a not unreasonable delay given the administrative difficulties involved in a functional reorganisation. His reasons for rejecting the arguments for upgrading certain positions within the CRS, in view of the several classification reviews which had occurred which had not recommended such a step, were also reasonable. In these circumstances, the Tribunal finds that these steps were reasonable administrative action taken in a reasonable manner.
79. At the same time, Ms von Stieglitz had written to the Justices in October 2006 complaining about Mr Doogan and Mr Howard. It is not clear whether she received an acknowledgement. On 21 March 2007 she followed this with a further memorandum to Chief Justice Gleeson which he acknowledged on 22 March 2007. The memorandum to the Chief Justice informed him that she had sought legal advice about the conduct of Mr Howard and Mr Doogan since mid-2003. She detailed her matters of complaint as: ‘workplace harassment, abuse of power, victimisation, breach of contract, constructive dismissal, the Chief Executive and Principal Registrar’s obligations under the Court’s Collective Agreement, Workplace Diversity Program and Code of Conduct and his duty of care’ under the Occupational Health and Safety (Commonwealth Employees) Act 1991 (Cth). The Memorandum also noted that while Ms von Stieglitz was on leave caring for her son, she had been asked to telephone the Senior Registrar on 26 February 2007 and been told of a restructure including the movement of the CRS on a temporary basis to the staff room/kitchen and in July to permanent premises on level three. She said a week later she was also informed that her leave entitlements had been audited and this was confirmed by a letter dated 9 March 2007. The letter concludes with her noting that she has ‘decided to remain on leave until at least 30 March 2007’.
80. There was no administrative deficiency in the Justices not dealing with these matters. The Tribunal notes that under section 19(1) of the High Court of Australia Act 1979 (Cth), it is the CE&PR who has the function of ‘acting on behalf of, and assisting, the Justices in the administration of the affairs of the High Court’.
2007: Advertisement in The Canberra Times.
81. On 26 May 2007, an advertisement appeared in The Canberra Times for the position of Court Reporting Supervisor, Ms von Stieglitz’s former position before she was promoted to Senior Reporter. Ms von Stieglitz complained that the duty statement closely paralleled those of her position as Senior Court Reporter, leading her to believe that her position was going to be made redundant. She wrote to the Senior Registrar on 4 June 2007 and on 13 June 2007 seeking clarification. Ms Rogers, the Senior Registrar, replied on 7 June 2007 and 15 June 2007 pointing out that the duty statement had been inaccurate and she would happily discuss any concerns Ms von Stieglitz might have about the broader recruitment processes on her return to work. Ms von Stieglitz also pointed out 13 June 2007 that despite Ms Rogers' acknowledgement that there had been an error in the duty statement as it appeared in The Canberra Times, Ms Rogers had not corrected that error on the Court's website after it was discovered.
82. The Tribunal notes that mistakes in the terms of duty statements can occur, such a mistake had been acknowledged in Ms Rogers' reply to Ms von Stieglitz, and although it was not immediately rectified on the Court's website, this was presumably undertaken given the absence of any continuing complaint by Ms von Stieglitz. The concerns of Ms von Stieglitz were expressed as being about the recruitment processes, but she apparently also believed her position at the Court was at risk. The response from Ms Rogers should have reassured her. At that time, Ms von Stieglitz remained on leave and her position was being filled by another reporter and Ms von Stieglitz was not formally in that position until her return. So to respond that Ms Rogers would discuss the recruitment policy issue with her on return was not unreasonable
83. The Tribunal finds in these circumstances that the responses to Ms von Stieglitz by the Senior Registrar were appropriate. Although the error in the duty statement and the slowness in correcting that error on the website were unfortunate, they are the kinds of administrative errors which do occur. Administrative action to be reasonable does not have to be perfect. It is enough that it is reasonable. In these circumstances, the Tribunal finds that this action was not unreasonable nor, given the tenor of the letters, and promptness of the replies by Ms Rogers, was it taken in an unreasonable manner.
2007: Handling of formal complaint including request for appointment of independent investigator
84. The Tribunal has considered whether the management of the formal complaint was lawful and found that it was. That does not foreclose its findings on whether the method of handling the formal complaint was reasonable and undertaken in a reasonable manner, taking into account in particular Mr Doogan's appreciation of Ms von Stieglitz's personal circumstances.
85. The formal complaint was made on 1 May 2007 and that letter contained a request that an independent person investigate the claims. Mr Doogan responded on 18 May 2007. In that response Mr Doogan provided a detailed response addressing the matters listed in the formal complaint document and denied many of the allegations. Counsel for Ms von Stieglitz questioned the appropriateness of Mr Doogan's response on the basis that since Ms von Stieglitz had requested an independent investigator, Mr Doogan should simply have handed the matter over to someone else to investigate and not attempted to reply to Ms von Stieglitz's complaints.
86. This argument ignores two matters: the resolution of complaints process under the Workplace Diversity Program requires the Chief Executive when a formal complaint has been lodged to 'consider the rights of both parties' and to inform the person accused of harassment 'of the substance of the allegations made' so that the person is 'given the opportunity to put their side of the story'; and the dispute settlement procedures in the High Court Administration Collective Agreement which state as a principle that 'the objective of the procedures... is the avoidance and resolution of any disputes'. In other words, a precursor to taking action was to seek to check the substance of the claim and to handle it informally.
87. As part of that approach, Mr Doogan's memorandum of 18 May 2007 requested details of the workplace harassment and intimidation by Mr Howard in 2003, and of the grievances underpinning the complaint against him in relation to the workplace diversity program. He concluded by asking her to state succinctly the basis of her complaint, what was her grievance, and what remedy or outcome she was seeking so that he could decide properly how to respond. The memorandum also noted that Ms von Stieglitz had ‘a history of breaching … obligations as an employee over a lengthy period of time’ and went on to detail those breaches.
88. By seeking information to enable him to be convinced of the substantive nature of her claims, Mr Doogan was taking appropriate administrative steps under those agreements. His reference to Ms von Stieglitz’s ‘history of breaching … obligations’ may have enhanced a perception on the part of Ms von Stieglitz that Mr Doogan would not bring an impartial mind to any investigation and may have been unnecessary at that time. However, since, ultimately, he was not the investigator, and would not be the CE&PR when the report of the investigator was received and this was known to Ms von Stieglitz at the time, the inclusion of this material was not sufficient for the response to be considered to be action taken in an unreasonable manner.
89. Ms von Stieglitz repeated her request for an independent investigating officer in a follow-up memorandum of 23 May 2007 and another on 4 June 2007. On 7 June 2007, Mr Doogan responded noting that an independent investigating officer had been chosen but before that person could undertake the investigation Mr Doogan needed information about the form which the alleged harassment took, the remedy or outcome sought, and the names of the persons against whom the allegations were made. In her reply dated 15 June 2007, Ms von Stieglitz repeated that she would not provide details to Mr Doogan because, being one of the alleged subjects of her claim, he was in a situation of conflict. However, she agreed to give full details of her complaint to the independent investigator.
90. The Tribunal finds that under a complaints procedure which required information and details of names and incidents in order to judge whether there is a prima facie case in which to launch an investigation for the relevant official to request such details is a reasonable step. The requests were made within a reasonable time and the appointment of someone as independent investigating officer was arranged prior to Mr Doogan’s departure from the Court in July 2007. In these circumstances, the actions were reasonable administrative action, taken in a reasonable manner.
2007: Letter of 21 August 2007.
91. The Tribunal has found that the steps taken by Mr Phelan as independent investigator did not involve an unlawful direction. That again does not foreclose the issue of whether the steps taken were reasonable administrative action taken in a reasonable manner. However, the Tribunal notes that Mr Phelan’s requests for the information needed to enable him as investigator to begin his task were not unreasonable. The principal issue is whether the statement in that letter, following a comment that Mr Phelan had scanned the material on the record that: ‘In these circumstances, I believe there is an onus on you to justify your allegations. As they stand, the allegations appear to be defamatory and wrong’ was either unreasonable administrative action or was administrative action taken in an unreasonable manner.
92. The Tribunal notes that there is nothing unreasonable about signalling in advance of a final determination what is a decision-maker’s preliminary thinking on an issue.[37] The words in the memorandum were no more than an advance warning that unless further information was provided, the existing information did not substantiate the claims made and might indeed be ‘defamatory’ or were ‘wrong’. To make a statement of this kind is not unreasonable administrative action. Nor was it action taken in an unreasonable manner. Indeed, it might be regarded as a pointer to Ms von Stieglitz which may have been valuable to her in indicating the importance of producing the information she had to substantiate her claims.
[37] Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576; endorsed generally in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32].
93. Nor is there evidence that Mr Phelan could have anticipated Ms von Stieglitz’s reaction to the inclusion of these words. As mentioned earlier, it was not known until November 2007 that Ms von Stieglitz was suffering an adjustment disorder. So Mr Phelan, from his scanning of the material on file, would not have been in a position to know that Ms von Stieglitz might have an adverse psychological reaction to this information. In those circumstances the Tribunal finds that communication of this information was not action taken in an unreasonable manner.
Conclusion
94. For these reasons, the Tribunal has found that the administrative action taken in this matter which was causal either on its own or cumulatively for Ms von Stieglitz’s adjustment disorder, was not unreasonable. That means Ms von Stieglitz’s psychological condition is excluded from being an ‘injury’ for the purposes of section 5A of the Act, and hence there is no liability to pay compensation under section 14 of the Act.
95. In these circumstances, there is no need to consider the final two issues.
96. The decision under review is affirmed.
97. The Tribunal makes the usual order as to costs under section 67 of the SRC Act.
I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member
Dr M Miller, MemberSigned: ..............................[sgd]....................................
Cigdem Kocak, AssociateDate/s of Hearing 14 December 2009 - 15 December 2009
Date of Decision 15 April 2010
Counsel for the Applicant Allan Anforth
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Ben Dube
Solicitor for the Respondent Dibbs Barker
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