Reid and Comcare (Compensation)
[2025] ARTA 467
•28 March 2025
Reid and Comcare (Compensation) [2025] ARTA 467 (28 March 2025)
Applicant/s: Tereina Reid
Respondent: Comcare
Tribunal Number: 2023/6818
Tribunal:Senior Member G McCarthy
Place:Canberra
Date:28 March 2025
Decision:The decision under review is affirmed.
...............................[SGD].........................................
Senior Member G McCarthy
CATCHWORDS
COMPENSATION - claim for psychological injury under Safety, Rehabilitation and Compensation Act 1988 arising from investigation of applicant’s misconduct - claim denied on grounds injury resulted from reasonable administrative action taken in a reasonable manner in respect of the employee’s employment and therefore not an injury as defined in s 5A of the Act - 11 claimed grounds of administrative action not lawful or not reasonable or not taken in a reasonable manner - none of the grounds established on the facts or the law - decision affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 part 6
Privacy Act 1988 (Cth) APP 6
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14
Surveillance Devices Act 2007 (NSW) ss 7, 11CASES
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Ebner v Official Trustee in Bankruptcy [2000] HCA 63SECONDARY MATERIALS
APS Commissioner’s Directions 2022 paras 19, 40, 59
APS Guide to Handling Misconduct paras 6.12, 6.14, 6.64, 6.65Statement of Reasons
On 23 March 2023, the Applicant’s employment with the National Disability Insurance Agency (the NDIA) was terminated consequent on a finding that the Applicant had breached the Australian Public Service Code of Conduct (the Code).[1]
[1] T6/135.
On 21 April 2023, the Applicant made a claim for compensation under s 14[2] of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) arising from a psychological injury claimed to have arisen out of the investigation into her conduct.[3]
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14, (‘SRC Act’).
[3] T3/8.
On 21 June 2023, the Respondent wrote to the Applicant in response to her claim. With reliance on the medical evidence before it, the Respondent accepted the Applicant had an ‘adjustment disorder with anxiety,[4] which resulted in her reduced capacity to work and that her employment significantly contributed to that disorder. However, the Respondent denied liability because, it said, the Applicant’s injury was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.[5] Injury, as defined in s 5A of the Act, does not include an injury suffered in that way.[6]
[4] The Respondent accepted the disorder was an ailment, as defined in s 5B of the Act, which is in turn a disease, which is in turn an injury as defined in s 5A of the Act.
[5] T8/305.
[6] SRC Act (n 2) s 5A.
Section 5A relevantly states:[7]
[7] Ibid.
"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) ...;
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:
…
(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);
On 31 August 2023, following the Applicant’s request for a reconsideration of the decision made on 21 June 2023, the Respondent affirmed its decision to deny liability.[8]
[8] T12/370.
The Applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the Respondent’s decision. The Applicant’s application had not been determined by 14 October 2024 on which day the legislation establishing the AAT was repealed and, as a consequence, the AAT ceased to exist. On the same day the Administrative Review Tribunal Act 2024 (the ART Act), which established this Tribunal, commenced.
Pursuant to Part 6, Schedule 2, item 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth),[9] “if a proceeding in the AAT is not finalised (however described) before the transition time[10] [as in this case] the proceeding must be continued and finalised by the ART in a manner that the ART considers is efficient and fair.” Accordingly, this Tribunal was required to hear and determine the Applicant’s application for review.
[9] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) pt 6, sch 2, item 24.
[10] ‘Transition time’ is defined in Schedule 16, item 1, to mean the time the Administrative Review Tribunal Act 2024 (Cth) commenced, which was 14 October 2024.
THE APPLICANT’S CLAIM
The Applicant submitted the exclusion in s 5A[11] did not apply because, she said, administrative action taken in respect of her employment giving rise to the termination of her employment was not reasonable, administrative action taken in a reasonable manner. She relied on eleven ‘key issues’[12] which I deal with in turn. She did not contend the termination of her employment itself was unreasonable.
[11] SRC Act (n 2) s 5A.
[12] Applicant's statement of issues, undated.
1. Use of unlawfully obtained evidence
The Applicant’s breach of the Code giving rise to the termination of her employment arose from a conversation on 20 September 2022 between the Applicant and Ms Sheahan, an officer with Managed Verification Services International (MVSI). The Applicant had been named as a referee in an application for employment made by Ms M Fernando. Ms Sheahan rang the Applicant for the purpose of conducting a reference check.
Towards the beginning of the telephone call, Ms Sheahan asked the Applicant about her professional relationship with the candidate, Ms Fernando. She asked when and for how long the Applicant worked with Ms Fernando and when Ms Fernando ceased her employment. In response to those questions, the Applicant gave answers that were not true. In particular, the Applicant said she was employed by the NDIA as a manager when she was not, that she was Ms Fernando’s manager when she was not, and that Ms Fernando’s employment with the NDIA ceased in September 2022 when in fact it ceased on 25 July 2022.
The phone call was recorded, and a transcript subsequently made. The recording and transcript formed the foundational evidence that the Applicant had given untrue answers during her conversation with Ms Sheahan. This led to the investigation into her conduct and the finding that the Applicant had breached the Code by reason of her untrue answers.
The Applicant contended the phone call with Ms Sheahan was recorded without the Applicant’s knowledge or consent in breach of s 7 of the Surveillance Devices Act 2007 (NSW) (the SD Act).[13] She further submitted the sharing of the recording and transcript with the NDIA was in breach of s 11 of the SD Act[14] and in breach of Australian Privacy Principle 6 (APP 6) of the Privacy Act 1988 (Cth) (the Privacy Act).[15] The Applicant contended this administrative action was not taken in a reasonable manner because, she said, the recording and the transcript were unlawfully obtained.
[13] Surveillance Devices Act 2007 (NSW) s 7, (‘SD Act’).
[14] Ibid s 6.
[15] Privacy Act 1988 (Cth) Australian Privacy Principle 6, (‘PA Act’).
The Respondent submitted the making of the recording and transcript, and MVSI’s sharing of the recording and transcript with the NDIA was not in breach of the SD Act nor the Privacy Act because the conversation was not a private or personal conversation and the information collected and then shared with the NDIA was not private or personal.
Section 7 of the SD Act states:[16]
[16] SD Act (n 14) s 7.
7 Prohibition on installation, use and maintenance of listening devices
(1) A person must not knowingly install, use or cause to be used or maintain a listening device--
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
Section 11 of the SD Act states:[17]
[17] Ibid s 11.
11 Prohibition on communication or publication of private conversations or recordings of activities
(1) A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person's knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.
In many circumstances, as stated in ss 7[18] and 11,[19] the prohibitions in ss 7(1)[20] and 11(1)[21] do not apply but there is no suggestion any of those circumstances is applicable. The Respondent’s denial of any breach turned on whether the recorded and shared conversation between the Applicant and Ms Sheahan was private.
[18] Ibid s 7.
[19] Ibid s 11.
[20] Ibid s 7(1).
[21] Ibid s 11(1).
APP 6 of the Privacy Act states:[22]
[22] PA Act (n 16) APP 6.
6 Australian Privacy Principle 6 - use or disclosure of personal information
Use or disclosure
6.1 If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:
(a) the individual has consented to the use or disclosure of the information; or
(b) subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.
6.2 This subclause applies in relation to the use or disclosure of personal information about an individual if:
(a) the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:
(i) if the information is sensitive information--directly related to the primary purpose; or
(ii) if the information is not sensitive information--related to the primary purpose; or
(b) the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or
(c) a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or
(d) the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or
(e) the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.
6.3 This subclause applies in relation to the disclosure of personal information about an individual by an APP entity that is an agency if:
(a) the agency is not an enforcement body; and
(b) the information is biometric information or biometric templates; and
(c) the recipient of the information is an enforcement body; and
(d) the disclosure is conducted in accordance with the guidelines made by the Commissioner for the purposes of this paragraph.
In my view, the information recorded and then shared was neither private for the purposes of the SD Act,[23] nor personal for the purposes of APP 6.[24]
[23] SD Act (n 14).
[24] PA Act (n 16) APP 6.
Ms Sheahan did not call the Applicant for private or personal reasons. She did not ask for or obtain private or personal information about the Applicant and she did not share private or personal information about the Applicant. It was or should have been, in my view, self-evident to the Applicant from the commencement of the conversation that Ms Sheahan was calling the Applicant by reason of the Applicant being listed as a referee by Ms Fernando in connection with Ms Fernando’s application for employment. The Applicant provided information in that capacity and for that purpose.
Also, in my view, it would or should have been self-evident to the Applicant that the information provided to Ms Sheahan would or might be provided to the prospective employer. In this regard, the transcript records that at the beginning of the conversation the Applicant was told her answers to the questions –
will be passed onto the prospective manager and under the Privacy Act may be passed onto the candidate if requested.
The Applicant might not have understood or expected the telephone call to be recorded, or told that it would be recorded, but that does not cause the making of the recording to be an offence under the SD Act[25] or the Privacy Act[26] where the information recorded and shared was not private or personal information.
[25] SD Act (n 14).
[26] PA Act (n 16).
In any event, the recording and transcribing of the conversation, whether lawful or appropriate or otherwise, had no bearing on the injury suffered by the Applicant or the exception to injury, as defined in s 5A of the Act,[27] because the recording and transcribing preceded commencement of the NDIA’s administrative action in respect of her employment.
[27] SRC Act (n 12) s 5A.
2. Material defect in procedural compliance and fairness
The Applicant noted that in a document sent to her titled ‘Notice of Suspected Misconduct’ dated 10 November 2022, she was advised she may have breached ss 13(1), (8), (9), (10a), (10b), (11a) and (11b) of the Code.[28]
[28] T6/74.
The Applicant noted that in a further document sent to her titled ‘Updated Allegations of Suspected Misconduct’ dated 18 November 2022,[29] she was advised that allegation 2 (which concerned documents forwarded to a personal email address in 2019) was “no longer in scope” but was not advised of any changes to the subsections of the Code that may have been breached.
[29] T6/85.
The Applicant noted that in a letter to her titled ‘Code of Conduct Breach Decision’ dated 22 February 2023, she was advised that breaches of ss 13(1), (9), (10a), (11a) and (11b) of the Code were considered, but not advised that a breach of s 13(8) was no longer considered.[30]
[30] T6/127.
With reliance on the alleged failure of the Director to advise the Applicant in the Director’s letter dated 22 February 2023 that a breach of s 13(8) was no longer considered, the Applicant alleged the NDIA breached s 59 of the APS Commissioner’s Directions 2022 (the Directions),[31] and paragraph 6.12 of the APS Guide to Handling Misconduct (the Guide)[32] which, she said, provide that a person under investigation must be provided with details of the suspected breach and any variation in the alleged breach.
[31] APS Commissioner’s Directions 2022 s 59, (‘Directions’).
[32] APS Guide to Handling Misconduct p 6.12, (‘Guide’).
Section 59 of the Directions provided:[33]
[33] Directions (n 32) s 59.
59 Employee must be informed that a determination is being considered
A determination may not be made in relation to a suspected breach of the Code of Conduct by an APS employee unless reasonable steps have been taken to:
(a) inform the APS employee of:
the details of the suspected breach (including any subsequent variation of those details); and
(ii) the sanctions that may be imposed on the APS employee under subsection 15(1) of the Act; and
(b) give the APS employee a reasonable opportunity to make a statement in relation to the suspected breach
Paragraph 6.12 of the Guide stated:[34]
6.12. In practice, agencies should:
• inform the person under investigation of the substance of what they are alleged to have done and what elements of the Code they are alleged to have breached
• provide the person under investigation with information on any variation in the alleged breach.
The person under investigation must be given a reasonable opportunity to make a statement in relation to the alleged breach (s.59(b))
[34] Guide (n 33) p 6.12.
The Applicant’s submission that the NDIA breached s 59 of the Directions [35]and/or paragraph 6.12 of the Code,[36] overlooks the NDIA’s letter dated 13 December 2022, by which the Director informed the Applicant of their view that the evidence did not support a finding of misconduct in relation to allegation 3 which concerned an allegation regarding content of a document.[37] The Director attached a draft investigation report dated 9 December 2022 from the investigator, Ms Yates, in which she stated, at paragraph 100, why she did not find allegation 3 to be substantiated. Ms Yates then stated “Therefore, I do not recommend the following element to be in breach” following which Ms Yates quoted s 13(8) of the Code.[38]
[35] Directions (n 32) s 59.
[36] Guide (n 33) p 6.12.
[37] T6/93.
[38] T6/119.
In their letter dated 13 December 2022 to the Applicant, the Director stated “I agree with the investigator’s findings in regard to allegation 3”.[39]
[39] T6/94.
It follows, in my view, that the Applicant was advised of the variation, both as to allegation 3 not being pursued and s 13(8) of the Code no longer being considered. It follows there was no need to confirm in the breach decision, conveyed by the Director’s letter dated 22 February 2023, that s 13(8) was no longer considered because that had advice had already been provided.
3. Not provided with new, significant investigation material and an opportunity to respond.
The Applicant referred to a document entitled ‘investigation timeline’ prepared by the NDIA,[40] that contains the following entries:
(a)7/2/2023: DY wrote to MVSI with NDIA’s position
(b)13/2/2023: MVSI response to DY query re pre-recorded privacy message
[40] T6/68.
The Applicant contended she had not been provided with either of these documents, despite requesting them under the Freedom of Information Act1982 (Cth) (the FOI Act),[41] and that the failure to provide the documents was in breach of paragraph 6.14 of the Guide.[42]
[41] Freedom of Information Act1982 (Cth).
[42] Guide (n 33) p 6.14.
Paragraph 6.14 of the Guide provides that if, during an investigation, new evidence comes to light about the actions of the person under investigation, reasonable steps must be taken to notify the person about the substance of the additional evidence and to provide them with a reasonable opportunity to respond to it before a determination is made.[43]
[43] Ibid.
When considering whether the apparent correspondence between DY and MVSI on 7 and 13 February 2023 was or might have been relevant to the investigation into the Applicant’s misconduct, I had regard to email correspondence from the Applicant to the NDIA’s freedom of information team with whom she was corresponding in relation to this request. I refer in particular to an email from ‘Helen’ sent to the Applicant on 25 January 2024 at 13:04pm regarding the Applicant’s request for this correspondence. Helen spoke about the need to consult with MVSI regarding disclosure of the correspondence because some of the documents the Applicant sought contained information about MVSI’s business affairs. Helen asked the Applicant if she agreed to the NDIA informing MVSI that the NDIA’s enquiry to MVSI about disclosure of the correspondence was in the context of a freedom of information (FOI) request and that the Applicant was the person seeking the documents.[44]
[44] Respondent’s Bundle of documents, page 253 of 524.
In her email in reply sent on 25 January 2024 at 2:17pm, the Applicant stated:
Procedural fairness requires I be given sufficient details to be able to respond. Despite my assertion that MVSI were breaching my privacy and the NDIA would too if they continued, they went ahead anyway. All without legal advice.”[45]
[45] Respondent’s Bundle of documents, page 252 of 524.
The Applicant continued by stating she did not give permission for the NDIA to mention her name to MVSI, suggesting MVSI “will know”, and did not give permission to reduce the scope of her request.[46]
[46] Respondent’s Bundle of documents, page 252 of 524.
It is apparent from this email correspondence in January 2024 that the Applicant had not received the requested correspondence prior to the termination of her employment on 23 March 2023. A question for the purpose of s 5A was whether not to disclose the email correspondence to the Applicant in the course of the investigation amounted to administrative action not taken in a reasonable manner. In particular, was the NDIA in breach of paragraph 6.14 of the Guide by not providing that correspondence.
I accept, of course, that if new evidence came to light that was relevant to the investigation of the Applicant’s conduct, she should have been given it and an opportunity to respond to it before the investigation was completed. However, there is nothing to suggest the communications between DY and MVSI on 7 and 13 February 2023 constituted evidence relevant to the investigation of the Applicant’s conduct. Also, more than likely, they were not.
As I understand it, MVSI’s only substantive involvement was its conduct of the reference check on 20 September 2022 and, subsequently, providing the NDIA with a copy of the recording and a transcript of the recording of the conversation between Ms Sheahan and the Applicant. The recording and the transcript were both provided to the Applicant.
The notations in the timeline of events regarding communications sent on 7 and 13 February 2023, read together with Helen’s email of 25 January 2024, suggest the communications were about MVSI’s practice of recording conversations made for the purpose of reference checks and, perhaps, the sharing of those recordings with prospective employers on whose behalf a reference check was conducted. However, none of that would have been relevant to the investigation of the Applicant’s conduct which concerned the dishonesty of the Applicant’s answers on 20 September 2022 regardless of MVSI’s practices regarding recording and sharing of conversations. Accordingly, I see no basis for concluding there was or might have been a breach of paragraph 6.14 of the Guide.[47]
[47] Guide (n 33) p 6.14.
4. Mandatory integrity training not completed
The Applicant noted that pursuant to s 19 of the Directions,[48] an agency that engages a person as an ongoing APS employee must make arrangements for the employee to undergo a program of training about integrity within 6 months of being engaged. The Applicant acknowledged she completed training for ‘APS Values and Employment Principles and the Code of Conduct’ on 29 July 2021, but noted she did so as a contractor not as an APS employee. The Applicant submitted the NDIA breached s 19 of the Directions, notwithstanding the earlier training, because she did not receive training (a second time) as an APS employee.[49]
[48] Directions (n 32) s 19.
[49] Ibid s 19.
In my view, this circumstance is not relevant for the purposes of s 5A because it had nothing to do with administrative action taken by the NDIA in its investigation of the Applicant’s misconduct.
Arguably, a lack of awareness about the importance of honesty and integrity might have had a bearing on whether the termination of the Applicant’s employment was appropriate but that does not arise because the Applicant does not challenge the termination. Also, a claim about lack of awareness would have lacked substance because, on the Applicant’s own case, she received training about integrity. Whether she did so as a contractor or an APS employee does not change the fact that the training was provided.
5. Unreasonable increase in responsibility during the investigation
The Applicant gave evidence, which I accept, that in late November 2022 she asked her Assistant Director if she could step away from some of her duties to help reduce the stress she was experiencing during the investigation into her conduct. The Applicant said that, notwithstanding her request, in December 2022 she was asked to commence a role as Team Leader in January 2023 and that Mr McCoy encouraged her to take on the role and not to be concerned about the investigation into her conduct.
The Applicant accepted the role and was given increased responsibility. The Applicant gave evidence that the additional responsibility exacerbated her stress and anxiety and impacted on her mental health and well-being. The Applicant gave evidence about feeling unsupported and about the strain of not being able to speak to her Assistant Director or Director about the investigation consequent on a direction that she not do so.
The Applicant contended it was not reasonable administrative action to place her into a high-stress leadership role when she was under investigation, especially against her expressed wishes and during a period of significant personal stress.
With reference to s 5A of the Act,[50] I am not persuaded that these circumstances, even if true, constitute administrative action taken in respect of the Applicant’s employment. As explained by a Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve,[51] the words “in respect of the employee’s employment”:
The action must be “in respect of” something that exists - the person’s employment. That is, the action must be something different to the duties and incidents of that employment .. [T]he administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be.[52]
[50] SRC Act (n 12) s 5A.
[51] Commonwealth Bank of Australia v Reeve [2012] FCAFC 21.
[52] Ibid at [60] .
In this case, offering the Applicant a role as Team Leader had nothing to do with the administrative action being taken “in respect of her employment”. Rather, it was concerned with her duties and tasks as an employee albeit at a higher level.
In any event, the Applicant may have been encouraged to take on the Team Leader role, but whether to do so remained a choice for her. I see nothing unreasonable on the NDIA’s part by offering the Applicant a role which she chose to accept.
6. Amanda Laing: false witness testimony
The Applicant contended that in the course of the investigation, Ms Laing, who was then an Assistant Director of the NDIA Fraud Taskforce, gave statements about Ms Fernando and about Ms Fernando’s attempts to contact Ms Laing that were false. The Applicant claimed that during the investigation, she stated to those conducting the investigation that Ms Laing’s statements were false, but (she said) the truth or falsity of Ms Laing’s statements was not properly investigated. This, the Applicant said, demonstrated that the investigation into her misconduct was not conducted in a reasonable manner.
The apparent question was whether Ms Laing’s statements about Ms Fernando or about attempts by Ms Fernando to contact Ms Laing had any bearing on the investigation into the Applicant’s misconduct. The issue was dealt with in the report giving reasons for the Applicant’s breach of the Code, and in particular the finding that allegation 1 was substantiated. Allegation 1 concerned the Applicant’s false information given to Ms Sheahan on 20 September 2022 discussed above.
The report records that during the course of the investigation into allegation 1, the Applicant claimed Ms Fernando misrepresented the Applicant as being her manager and did not inform the Applicant that she intended to put the Applicant forward as a referee as Ms Fernando’s manager.
The Applicant’s claims led the investigator to contact Ms Laing to seek her input on the matter. Ms Laing provided her input, which the Applicant then stated was false.
It is neither necessary nor appropriate for me to consider the Applicant’s claims about Ms Laing’s statements, because the truth or falsehood of Ms Laing statements is not relevant for the purposes of section 5A of the Act.[53] Irrespective of what Ms Fernando said or Ms Laing said, or the truth or falsity of what either of them said, allegation 1 concerned the Applicant’s statement to Ms Sheahan on 20 September 2022 that she (the Applicant) was a manager and was Ms Fernando’s manager where those statements were false. That allegation was substantiated.
[53] SRC Act (n 12) s 5A.
Whatever Ms Fernando and/or Ms Laing said or did not say about whether the Applicant was Ms Fernando’s manager does not change the fact that the Applicant was not Ms Fernando’s manager and falsely claimed to Ms Sheahan that she was.
Accordingly, I do not accept the investigation into the Applicant’s conduct was not conducted in a reasonable manner because the truth or otherwise of Ms Laing’s statements had no bearing on whether allegation 1 was substantiated.
7. Biased investigation - lacked objectivity
The Applicant stated her belief that Ms Yates had made up her mind that the Applicant had engaged in misconduct before hearing from the Applicant. She also contended Ms Yates and the Case Manager, Ms Chamberlain, were ‘dismissive and accusatory’ in the conduct of the investigation.[54]
[54] Applicant’s statement of issues at [6 a and b].
The Applicant stated her belief that her employment was terminated “without delay and in retaliation”[55] to the Applicant’s request to the Merit Protection Commission (the Commission) for review of the NDIA’s investigation of her misconduct.
[55] Applicant’s statement of issues at [6 h].
The Applicant contended that on 8 March 2023, when Ms Chamberlain provided the Applicant with the preliminary sanction decision, Ms Chamberlain said to the Applicant in the context of the Applicant acting in an ‘EL1’ position “a person like you should not be in a position of power’” (which Ms Chamberlain denies) and that a final decision made by the NDIA prior to the Commission making their decision would cease the Commission’s activity.[56]
[56] Applicant’s statement of issues at [6 f].
The Applicant contended the outcome was pre-determined because the Applicant provided her response to the proposed sanction decision on 20 March 2023, and her employment was terminated only three days later on 23 March 2023.
At hearing, the Applicant stated her claim of apprehended bias was based only on the statements she said Ms Chamberlain made to her on 8 March 2023 and the speed with which the investigation was completed subsequent to the Commission becoming involved.
Much has been written on the subject of bias but at its core, to establish apprehended bias, the Applicant needed to show that a hypothetical fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker was required to decide.[57]
[57] Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [83].
The claims about Ms Chamberlain’s statements can be put to one side because she was not the decision-maker. Her role was “to act as a conduit” between the Applicant and those conducting the investigation and making decisions.[58] In other words, whether Ms Chamberlain held a view or a predetermined view about the outcome or made inappropriate remarks is irrelevant because it was not for her to decide, nor did she decide, anything.
[58] Witness statement of Alexandra Chamberlain dated 23 February 2024 at [5] – [6].
Turning to the Applicant’s second concern, even if the investigation of the Applicant’s conduct sped up following the Applicant referring the matter to the Commission, I do not accept that a fair-minded lay observer would think, for that reason, Ms Yates or Ms Hand did not bring an impartial mind to the matter. To conduct an investigation and reach a conclusion as expediently as the matter permits is appropriate conduct. I do not accept that expediency evidences lack of impartiality, provided the questions for investigation and resolution have been properly considered in a procedurally fair way. In this case, the report into the investigation of the Applicant’s conduct read in conjunction with the preliminary sanction decision evidences ample consideration of the issues to be considered.
I see nothing inappropriate or artificial in the NDIA taking three days to consider the Applicant’s responses to the preliminary sanction decision before deciding to make its final decision which confirmed the preliminary decision.
I am not persuaded an apprehension of bias is made out.
8. Not afforded the opportunity to request or have a support person
The Applicant noted that pursuant to paragraphs 6.64-6.65 of the Guide,[59] the NDIA was required to advise her (as a person under investigation) of her right to a support person at any stage of their involvement in a misconduct process. Those paragraphs state:
6.64Agencies should advise the person under investigation, and relevant third parties such as witnesses, of their right to a support person at any stage of their involvement in a misconduct process. A support person is chosen by the person under investigation or witness.
6.65 Decisions of the Fair Work Commission indicate that while a support person cannot advocate for an employee or speak on their behalf, they may do more than simply provide emotional support. For example, a support person can help facilitate mutual understanding between an agency and an employee if the employee is having difficulty understanding the process or the agency is misconstruing the employee’s perspective. It may also be reasonable for a support person to assist the person under investigation, or witness, in preparing for a discussion or interview, or to take notes.
[59] Guide (n 33) p 6.64-6.65.
The Applicant contended that in her dealings with Ms Chamberlain the NDIA “fell short”[60] of the expectations of it under those paragraphs of the Guide.
[60] Applicant's statement of issues at [7 b].
The Applicant drew on Ms Chamberlain’s witness statement in which she stated that it is “not usual or standard practice to offer a support person to an employee when they are talking to the Case Manager”.[61]
[61] Witness statement of Alexandra Chamberlain dated 23 February 2024 at [10].
The Applicant also drew on a witness statement from Ms Hand, the NDIA’s Director, Workplace Integrity, People and Culture and Ms Chamberlain’s supervisor, in which Ms Hand stated:
It is the ordinary process with the P&C Team that the Case Manager may make brief contact with the subject employee either by Microsoft Teams and/or telephone call[s] to notify them that a letter related to the investigation will shortly be issued to them. These communications are not investigative in nature because the Case Manager does not have any decision-making power in relation to the investigation and acts only as administrative support and “go-between”. For that reason, a support person is generally not required to be present for the short conversations unless the subject employee requests to have a support person for those conversations.[62]
[62] T14/396, Witness statement of Amy Hand at [70].
The Applicant submitted she did not receive sufficient notification of important conversations soon to occur, save for receiving Microsoft Teams messages or a telephone call to advise her, for example, that a letter relating to the investigation would shortly be sent. The Applicant said Ms Chamberlain called her without prior notification to advise she would be sending an email or to confirm receipt of emails or to advise of next steps and would call without context or without checking if she would have support in place when she would be later receiving advice of important decisions regarding proposed and final findings of misconduct and proposed and final decisions regarding sanction.
In her statement, Ms Chamberlain detailed her role as Case Manager. She explained she did not have any decision-making power or authority, and that her role was ‘to act as a conduit’ between the investigative team and the Applicant, to pass on information and to keep the Applicant up to date about the status of the investigation.[63]
[63] Witness statement of Alexandra Chamberlain dated 23 February 2024 at [5]-[6].
Ms Chamberlain, to some degree, agreed with the Applicant in the sense that she acknowledged sending the Applicant messages via Teams without notice to advise of a forthcoming letter or to set up a time for a Teams ‘chat’ with the Applicant about next steps in the investigation process or to discuss any questions the Applicant might have about correspondence sent or soon to be sent.
Ms Chamberlain noted that in important correspondence sent to the Applicant, for example the letter dated 13 December 2022 advising the preliminary breach decision and the letter dated 8 March 2023 advising the preliminary sanction decision, the author of the letter (in each case) noted their appreciation that the contents of the letter “may be difficult for you” and encouraged the Applicant to contact the NDIA’s Employee Assistance Program (the Program) “should you require further support”. Ms Chamberlain noted reference to the Program occurred on 11 occasions in communications with the Applicant between November 2022 and March 2023.
I can understand the Applicant not welcoming unannounced messages from Ms Chamberlain where Ms Chamberlain was likely informing the Applicant of forthcoming correspondence or information concerning the investigation and its progress. I can, for this reason, understand why the Applicant felt stressed when hearing from Ms Chamberlain.
I do not accept, however, that the NDIA not providing the Applicant with support when communicating with Ms Chamberlain was not reasonable. Ms Chamberlain had no substantive role in the investigative process.
To a material degree, Ms Chamberlain’s role was to provide the Applicant with support in the sense of notifying her about forthcoming correspondence and being someone with no substantive role in the investigation with whom the Applicant could discuss the process and ask questions about what would next occur.
Once Ms Chamberlain’s role is understood, the flaw in the Applicant’s contention is exposed. In substance, the Applicant’s contention amounts to saying it was not reasonable for the NDIA not to provide her with a support person to support her in her dealings with Ms Chamberlain whose role was to provide the Applicant with support. I disagree.
Also, the Applicant’s reliance on paragraphs 6.64-6.65 of the Guide is misconceived.[64] Those paragraphs obliged the NDIA to inform the Applicant of her right to a support person, chosen by the Applicant, at any stage of the Applicant’s involvement in the misconduct process. The NDIA informed the Applicant of that right eleven times. I was not taken to any occasion when the Applicant took up that right in her dealings with Ms Chamberlain or anyone else, save for asking for Ms Jadid to be her support person for a forthcoming interview which did not eventuate because the Applicant subsequently elected not to participate in the interview.
[64] Guide (n 33) p 6.64-6.65.
In any event, if the Applicant had not wanted Ms Chamberlain to be involved and wanted instead to deal directly with those conducting the investigation, she could have asked. There is no evidence that she did so.
I am not persuaded it was not reasonable administrative action for the NDIA not to provide the Applicant with a support person when dealing with Ms Chamberlain.
9. Issues with Ms Chamberlain’s statement
The Applicant expressed a range of concerns about Ms Chamberlain’s witness statement and her dealings with Ms Chamberlain. Whilst I deal with them below, I was not persuaded that any of them, whatever nuance or viewpoint is applied, resulted in the Applicant’s injury or was not reasonable administrative action.
The Applicant began by referring to Ms Chamberlain’s file note of her conversation with the Applicant on 14 November 2022, as attached to Ms Chamberlain’s witness statement, and observed there was nothing to confirm the date on which the file note was written. Other than, perhaps, to suggest a lack of ‘best practice’, nothing seemed to turn on the absence of information on the file note as to when it was written. In any event, at hearing Ms Chamberlain gave evidence on oath (which I accept) that she wrote the file note on the day of the conversation immediately following the conversation.
The Applicant noted Ms Chamberlain’s witness statement does not include records of other conversations she had with the Applicant. That might well be true, but I see no failing on Ms Chamberlain’s part in this respect where it is the prerogative of a witness to give the evidence they believe relevant to the proceeding and not to give a plenary account of everything that occurred. The Applicant was similarly able to give evidence of any conversation with Ms Chamberlain not mentioned in the witness statement that the Applicant thought relevant and to cross-examine Ms Chamberlain about any other conversations the Applicant thought relevant.
The Applicant contended she was not told that information she provided to Ms Chamberlain might be passed on to those conducting the investigation and used for the purpose of the investigation. The Applicant referred to paragraph 34 of the preliminary breach report which records the Applicant stating to Ms Chamberlain on 14 November 2022 the Applicant’s belief that Ms Sheahan from MVSI had misunderstood the Applicant’s comments to Ms Sheahan during the reference check about Ms Fernando. It seems clear this information was passed on to Ms Yates because, as recorded in paragraph 35 of the preliminary breach report, Ms Yates then spoke with Ms Sheahan to ascertain her viewpoint.[65]
[65] T6/104.
I am unable to see any failing on the NDIA’s part, or Ms Chamberlain’s part, by Ms Chamberlain not stating to the Applicant (if it is the case) that information the Applicant gave to Ms Chamberlain might or would be passed on to the investigation team. Where Ms Chamberlain’s role was to be a ‘conduit’ between the Applicant and the investigation team, it is self-evident she would or might pass information given by the Applicant to the investigation team and vice versa. It is also difficult to understand why the Applicant thought otherwise, if she did. For example, what would be the point of the Applicant explaining to Ms Chamberlain her view that Ms Sheahan misunderstood the Applicant’s comments to her during the record check if she thought Ms Chamberlain would keep that information to herself? It is self-evident the Applicant expected Ms Chamberlain to pass that information on to those investigating the suspected breaches. The same is true for other information the Applicant provided to Ms Chamberlain, for example her initial wish to have a support person present during the forthcoming interview with those investigating the alleged misconduct and the Applicant’s subsequent election not to participate in an interview. It is self-evident the Applicant expected Ms Chamberlain to pass that information on to the investigation team, which is what occurred.
The Applicant took issue with Ms Chamberlain not mentioning in her witness statement the Applicant’s request for a support person, Ms Sonia Jadid, as recorded in the Applicant’s email sent on 15 November to 22 at 4:17pm[66] and, she said, Ms Chamberlain never offering her a support person. This complaint is without substance. In response to the Applicant’s request for a support person, which was made in the context of a proposed interview with Ms Yates, Ms Chamberlain replied “Thanks for letting me know. Once we have a date for the interview, I will include Sonia on the invitation.”
[66] Respondent's tender bundle at page 147.
The following day, the Applicant advised Ms Chamberlain that she did not wish to participate in an interview and would respond in writing- as occurred. Accordingly, the question of the Applicant wanting a support person during an interview with Ms Yates became irrelevant.
The Applicant’s claim Ms Chamberlain never offered the Applicant a support person “before, during or after” their initial conversation on 14 November 2022 is without substance. Ms Chamberlain might not herself have done so but, on the evidence, on eleven occasions the Applicant was offered support through the Program.
The Applicant took issue with the direction to her, within the Notice of Suspected Misconduct letter, that she not discuss the matter with her senior managers including Mr McCoy. The Applicant noted Ms Chamberlain confirmed the substance of that direction in her email to the Applicant sent on 15 November 2022. The Applicant challenged how Mr McCoy could provide her with “pastoral support”, when she could not discuss the investigation with him or he with her. This complaint too is without substance. Confidentiality was necessary to maintain the integrity of the process. Pastoral care and support could still be provided, for example in the context of making allowances in her duties or performance, without knowing the detail of the investigation in the same way that care and support can be provided for a person in the context of other circumstances, for example health or personal bereavement, without knowing the details of what has occurred or is occurring.
The Applicant took issue with Ms Chamberlain telephoning her on 23 March 2023 to advise of the delegate’s final sanction decision, namely termination of her employment, and to advise her the delegate’s sanction letter would be coming. Whilst I can understand this news was not welcomed and left the Applicant feeling distressed, Ms Chamberlain’s actions need to be put in context. Having earlier received the draft sanction letter which gave her an opportunity to comment, the Applicant knew that termination was the sanction under consideration. Also, I do not accept Ms Chamberlain calling the Applicant to let her know the outcome was not a reasonable administrative action even if views may differ. It seems preferable to not calling, and the Applicant receiving the sanction decision by email without more.
Also, it is difficult to envisage how Ms Chamberlain could have preferably conveyed the news. For example, where the Applicant already knew termination was the sanction under consideration, for Ms Chamberlain to have called to say she wished to convey the sanction decision but did not wish to do so until checking if the Applicant wished to have a support person present when she did so would make the outcome self-evident and might very well have heightened the distress.
10. Publishing notice of my termination in APS Gazette
The Applicant stated that on 13 April 2023, she learned that on 6 April 2023 notice of her termination was published in the APS Gazette. She said she emailed the NDIA requesting the notice be “de-identified” so that her name, as the person terminated, was not disclosed. The Applicant acknowledged that, under s 40 of the Directions,[67] termination of employment of an ongoing employee on the grounds of a breach of the Code is an employment decision that “must” be notified in the APS Gazette, but noted an agency head has a discretion not to include the name of the person whose employment has been terminated.
[67] Directions (n 32) s 40.
The Applicant said that on 19 April 2023 Ms Minkin on behalf of the NDIA advised her they had a right to publish notice of the Applicant’s termination (including her name) in the APS Gazette and the notice would not be changed to de-identify the Applicant.
The Applicant said that subsequent to the termination of her employment, she applied for approximately 112 roles without success. She contended the publication of the notice with her name in the APS Gazette “was an unreasonable administrative action that further harmed my professional reputation and employment prospects.”[68]
[68] Applicant's statement of issues dated 24 May 2024 at [9 e].
The Respondent submitted publication of the notice in the APS Gazette is irrelevant for the purposes of s 5A because the Applicant was not an employee at the time of the publication;[69] Nor, the Respondent said, is there any evidence that the publication resulted in the Applicant’s injury.
[69] SRC Act (n 12) s 5A.
Section 40(4) of the Directions (as in force at the time) provided:[70]
(4) A notification must include the employee’s name unless:
(a) the Agency Head decides that the name should not be included because of the person’s work-related or personal circumstances.
[70] Directions (n 32) s 40(4).
Pursuant to s 40(4), the ‘starting point’ was that the employee’s name must be included.[71] Section 40(4)(a) provided an exception to the rule. The Applicant does not point to anything about her work-related or personal circumstances that might have led the NDIA’s agency head to exercise the discretion under s 40(4)(a), save for the publication harming her professional reputation and employment prospects. In my view, such harm would occur in relation to the great majority of cases. If publication of a person’s name was “unreasonable” for that reason, there would be few cases where the discretion not to include the person’s name should not be exercised. Such an approach would defeat s 40, which mandates inclusion of the employee’s name ‘unless’ an exception is made out.[72]
[71] Ibid.
[72] Directions (n 32) s 40.
In my view, it was reasonable administrative action for Ms Minkin to decide the publication would remain unchanged.
Referring to the Respondent’s submission, I do not accept that publication of a notice in the APS Gazette about the termination of the employment of a Commonwealth employee is not an administrative action taken in respect of the employee’s employment. However, nothing turns on this because, my view, publication of the notice of the Applicant’s termination including her name was in accordance with s 40 of the Directions and,[73] accordingly, reasonable administrative action for the purposes of s 5A of the Act.[74]
[73] Ibid.
[74] SRC Act (n 12) s 5A.
11. Surveillance of my new business venture
The Applicant stated that on 4 January 2024 she started her own NDIS provider business. She stated that on 25 January 2024 and on subsequent days, she found website analytics that, she said, evidenced the NDIA was visiting the Applicant’s website. The Applicant contended other data suggested someone had informed the NDIA that the Applicant “was sharing NDIA official information, the escalation and prioritisation risk matrix”. The Applicant stated she obtained the information via an “in NDIS Facebook group”.[75] The implication of the Applicant’s contention, as I understood it, was that she had not done anything improper because she obtained the information through an NDIS Facebook group.
[75] Applicant's statement of issues dated 24 May 2024 at [10].
The Applicant contended it was unreasonable administrative action, for the purposes of s 5A of the Act,[76] for the NDIA to be conducting “surveillance” of her website 10 months after she had left the NDIA.
[76] SRC Act (n 12) s 5A.
The Applicant’s submission was not persuasive in fact or law.
I am unable to discern anything unreasonable about the NDIA visiting a website, and in this case the Applicant’s website, that is accessible to the public on the Internet: websites are set up for that purpose.
Even if the NDIA accessing her website was in some way unreasonable, which I do not accept, that circumstance is irrelevant for the purposes of s 5A of the Act which concerns reasonable administrative action “in respect of the employee’s employment”. On the Applicant’s own case, the Applicant set up her business and presumably also the website to promote her business long after the termination of her employment. The NDIA accessing her website had nothing to do with her employment.
CONCLUSION
Where I was not persuaded any of the actions about which the Applicant complained was not reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment, the decision under review is affirmed.
Dates of hearing: 30 October 2024 and 19 November 2024 Applicant: In person Advocate for the Respondent: Ms A Bortone Solicitors for the Respondent: HBA Legal
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