Rodway and Comcare (Compensation)

[2022] AATA 163

Rodway and Comcare (Compensation) [2022] AATA 163 (7 February 2022)

Division:GENERAL DIVISION

File Number(s):      2019/7606

Re:Kaylene Rodway

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member West

Date:7 February 2022

Place:Melbourne

The decision of the delegate of the Respondent dated 27 September 2019 affirming the determination dated 9 July 2019 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) is set aside and in its place the Tribunal determines that:

(a)the Applicant suffered incapacity for work as a result of an injury, namely adjustment disorder with mixed anxiety and depression, the subject of a claim for compensation dated 10 May 2019, to which her employment with the Department of Human Services contributed to a significant degree (Injury);

(b)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;

(c)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and

(d)the Respondent is to pay the Applicant’s costs and disbursements of these proceedings pursuant to s 67 of the Act.

............................[SDG].....................................
Member R West

Catchwords

WORKER COMPENSATION – s 14 of the Safety, Rehabilitation and Compensation Act 1988 – psychological injury – adjustment disorder with mixed anxiety and depression - incapacity for work – whether reasonable administrative action taken in a reasonable manner – decision set aside.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Public Service Act 1999 (Cth)

Administrative Appeals Act 1975 (Cth)

Cases

Comcare v Drinkwater [2018] FCAFC 62

Comcare v Martin (2016) 258 CLR 467

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Drenth v Comcare [2012] FCAFC 86

REASONS FOR DECISION

Member R West

7 February 2022

1. This matter concerns an application for the review of a decision of a delegate of the Respondent dated 27 September 2019 to affirm a determination dated 9 July 2019 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) for the Applicant’s condition of adjustment disorder with mixed anxiety and depression.

   Background

2. At all relevant times the Applicant was employed by Services Australia as a team leader in the Department of Human Services, having commenced the employment in 2004.

3. On 10 May 2019, the Applicant submitted a claim under s 14 of the Act[1] for compensation related to an alleged condition of adjustment disorder with mixed anxiety and depression.

   [1] T5 at pp.8-16.

4. The Respondent denied liability under s 14 of the Act on 9 July 2019.[2]  This decision was affirmed by an independent review officer on 27 September 2019.[3]  The Applicant lodged an application for review of this decision by the Tribunal on 19 November 2019.[4]

   [2] T51 at pp.213-214.

   [3] T70 at pp.281-282.

   [4] T3 at pp.5-6.

5. A hearing in relation to the Review was held on 16, 17 and 18 August and 6 September 2021.  Due to the restrictions placed on the community in response to the COVID-19 pandemic the Tribunal determined that the hearing proceed by videoconference pursuant to s 33A of the Administrative Appeals Act 1975 (AAT Act). The Applicant was represented by Mr Mark Carey of counsel.  The Respondent was represented by Mr John Wallace of counsel.

6. In conducting the Review, the Tribunal has had regard to:

   (a)the documents produced by the Respondent pursuant to s 37 and s 38AA of the AAT Act (T Documents);

   (b)the documents tendered by the parties and listed as exhibits in Annexure A; and

   (c)the oral evidence of:

   (i)the Applicant; and

   (ii)Dr Matthew Tagkalidis, psychiatrist;

   (iii)Tanya Michelle Hines;

   (iv)Jeanette Kiervan;

   (v)Melissa Brotherson-Clarke; and

   (vi)Dr Anthony Sheehan, psychiatrist.

   Relevant Legislation

7. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Act).

8. Section 14 of the Act provides:

   (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.

9. Sections 5A(1) and 5B(1) respectively set out the relevant definitions for the purpose of the Act as follows:

   "injury" means:

   (a)  a disease suffered by an employee; or

   (b)  an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

   (c)  an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

   "disease" means:

   (a)  an ailment suffered by an employee; or

   (b)  an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

10. The terms ailment and aggravation are defined in s 4(1) of the Act. “Ailment” is defined  to mean any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development) and "aggravation" includes acceleration or recurrence.

11. Section 5B(2) of the Act provides that:

    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.

12. Section 4(3) of the Act provides that "significant degree" means a degree that is substantially more than material.

    Applicant’s Evidence

13. The Applicant provided four separate written statements[5] and gave oral evidence at the hearing.

    [5] T43 at p.170; T 56 at p.221 and Exhibits A1 and A2.

14. The Applicant stated that she was born in 1976 and grew up in Temora, NSW.  She initially worked in Canberra as a pharmacy assistant and in real estate before working for Centrelink in a contract position. She took up a permanent APS 6 position with Services Australia in about January 2007. From 2009 to 2012 she worked in Adelaide in the Adelaide Child Support Centre as a team leader before transferring to Melbourne where she worked as a team leader in the Melbourne Child Support Centre.  As a team leader she supervised a team of approximately 15 members.  She also acted in a higher duties position as an assistant manager at the EL 1 level.

15. In June/July 2018 the Applicant worked in the Service Support role in the Albury office for a period of around four weeks.

16. In 2019 the Applicant requested a permanent transfer to the Albury branch for family reasons, her mother had moved to Benalla and she had a brother in Wodonga.  Her request was approved, and she was appointed to the position of team leader at the APS 6 level in the Albury office to commence on 7 January 2019.

17. In the year prior to transferring to the Albury office the Applicant was required to performance manage two members of her team.  As a result of the performance management the Applicant was subject to complaints of bullying and harassment by the two employees.  The complaints were resolved without any finding of wrongdoing by the Applicant but one of the employees also lodged a complaint of unlawful discrimination against her in the Human Rights Commission.  The Human Rights complaint was subsequently withdrawn shortly after the Applicant commenced in the Albury office.  The Applicant stated that she found dealing with these complaints, including dealing with lawyers representing her, to be very stressful and she was shaken by the experience.

18. The Applicant explained that there were a number of aspects of her work in the Albury office which had contributed to her stress.

19. In about October 2018, while she was in Melbourne pending the transfer to Albury, the Applicant received a phone call from Tanya Hines, the Service Support Manager in the Albury office.  Ms Hines knew the Applicant from her time in the Albury office in June/July 2018.  The Applicant claimed that in that call Ms Hines questioned her about why she had requested a transfer and that she used a tone which suggested that she was suspicious of the Applicant.

20. Within a couple of weeks of starting in the Albury office the Applicant was directed by her manager Ms Brotherson-Clarke to undertake the performance management of a member of her team, Ms H. The Applicant explained that this caused her stress and anxiety.  She said that, while she was experienced as a team leader, she had been assigned to a team in the Albury office in a business line with which she was not familiar and she had not yet become familiar with the general functioning of the Albury office.  She said she had raised concerns with Ms Brotherson-Clarke about her ability to conduct the performance management in these circumstances.

21. On 21 January 2019 the Applicant met with Ms H as directed.  She said she met with Ms H in a closed office to discuss Ms H’s work performance.  The Applicant stated that during the meeting Ms H had become agitated and aggressively banged her hands on the desk.  The Applicant claimed that she was extremely intimidated and concerned[6] by Ms H’s conduct.

    [6] Exhibit A1 at [12].

22. The Applicant stated that her interactions with the leadership group in the Albury office were  generally unsupportive and that she felt humiliated and disrespected as her contributions, ideas and strategies had not been welcomed by other members of the leadership team.

23. She recounted a particular incident which occurred on 22 January 2019.  The Applicant said she had attended a regular brief stand-up meeting with other members of the leadership team held in the open office area at 9.30 am on 22 January 2019.  In the course of the meeting a member of the team, Steve Willis, an administrative officer, announced that the Applicant was required to chair a meeting that afternoon and that her service support officer Cindy Marsh was to take the minutes of the meeting.  The Applicant, who said she was unaware of the arrangements for a rotating chair of the afternoon meeting, replied to
    Mr Willis that: No I’m not, and no she won’t be.  Ms Marsh was involved in training that afternoon.

24. The Applicant stated that after the stand-up meeting she was called aside by Ms Hines and asked to meet with her in a closed office.  The Applicant claimed that Ms Hines told her that her answer to Mr Willis at the stand-up meeting was offensive and that she had behaved inappropriately.  The Applicant said she was taken aback by Ms Hine’s comments and couldn’t understand why she thought her actions were worthy of her being dressed down by Ms Hines who was not her direct supervisor.

25. The Applicant said that later in the morning she spoke to Mr Willis to apologise for any offence. Mr Willis said that he had not been offended and he apologised to the Applicant for not giving her the roster for the chairing of the afternoon meetings.

26. The Applicant said she continued to work that morning and at 12.51 pm she received an email from Ms Hines which purported to be a record of our catch up this morning[7]. The email read in full:

    [7] Exhibit R2.

    Hi Kay,

    Thanks for taking the time to speak with me earlier about this morning’s stand up meeting:

    ·I raised that when Steve mentioned at stand up this morning that you were chair for today’s leadership meeting and that your SSO was the attending, my observation was that your response to him was quite abrasive.

    ·I mentioned that I understood that you are still learning how things work and may not have been aware of the roster for chair, however the manner in which you responded was not appropriate.

    ·You acknowledged that you are aware how you can sometimes come across and this is something you are working on.  You also stated that you had apologised to Steve afterwards.

    ·You advised that Cindy has refresher training on this afternoon with [Ms H], which is why she will not be able to attend the leadership meeting.  I agreed that this was ok. We also discussed tracking [Ms H]’s workload and Cindy had documented the support/training provided, which you will send to me.  I will touch base with Cindy regarding tracking [Ms H]’s workload.

    ·We went on to discuss your meeting with [Ms H] yesterday: some personnel issues happening with you and your team in general, particularly the negative and whinging behaviour of a couple of people.  I agreed it’s a good thing that there will be a third person present at all future discussions with [Ms H], given her behaviour.

    ·You also mentioned whether it’s in place or was there a way to get the team leaders to support each other, and used a discussion had by Angela with a leader as an example of what you meant.  I advised that I would expect any team leader to support another team leader during these discussions and encourage the SO to have further conversation with their team leader.

    Kay, we didn’t put a firm plan in place with regards to the discussion we had about your team.  Please let me know if you want to progress this further, I’m happy to discuss options to support you to manage this in your team.

    Please let me know if you want to discuss any of the above further.

    Regards

    Tanya Hines

27. The Applicant said that the email caused her to have a panic attack and that she was in tears several times that afternoon and was offered support by her service support officer Ms Marsh.  She said that she continued to work that day including chairing the afternoon meeting and completing her scheduled overtime until 8.00pm.  She said that she was still emotional when she finished work and felt that she was unable to drive home to Benalla safely and so stayed in Wodonga with her brother for the night.

28. The Applicant said she took a day of personal leave on 23 January 2019 and returned to work on 28 January, but commenced personal leave again on 1 February 2019 and remained on either personal leave or annual leave until January 2020 when she returned to work on reduced hours in a national role in a different part of the Albury office from the Child Support Team.

29. The Applicant claimed in her statement of 11 August 2021 that the difficult performance management episodes in Melbourne as well as dealing with the cliquish leadership group in Albury were the experiences that led me to become psychologically ill[8].

    [8] Exhibit A2 at [51].

30. In addition to her own evidence the Applicant relied on the medical evidence of Dr Matthew Tagkalidis, psychiatrist, Sandi Dunne, psychologist, and Dr John Lambert, general practitioner, who diagnosed her as suffering from an adjustment disorder with mixed anxiety and depression.

    Issues

31. The following issues arise for determination:

    (a)Did the Applicant sustain an injury, and specifically an ailment, or the aggravation of an ailment, to which her employment made a significant contribution; and

    (b)

    If so, did the injury result in an impairment or an incapacity for work as defined in

    
    

    s 4 of the Act; and

    (c)If yes, is the injury subject to the operation of any exclusionary provision, and specifically, was the injury suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.

    Parties’ Concessions

32. The parties did not dispute that the Applicant sustained an adjustment disorder with mixed anxiety and depression to which her employment made a significant contribution and that this constituted an ailment and therefore an injury within the meaning of s 4 of the Act.  It was also not disputed that the injury resulted in the Applicant having an incapacity for work as defined in s 4(9) of the Act.

33. In their final written submissions, the parties confirmed that there was no dispute about various key matters including:

    (a)The Applicant being an ‘employee’ for the purposes of s 5 of the Act. At the material times, she was a permanent employee engaged under the Public Service Act 1999 (PSA), engaged as an APS 6 level officer within the Department of Human Services and her specific role was as a Team Leader in the Albury Office of the Child Support Services. She had been engaged in the particular Department since 11 January 2007[9].

    (b)The Applicant suffered from a condition beyond the bounds of normal mental functioning. She was diagnosed with an adjustment disorder with mixed anxiety and depression.

    (c)The Applicant’s first treatment for that disorder was in the first week of February 2019. In her reconsideration request[10] she advised that she “sought medical treatment in the first week of February. I was seen by Dr Belinda Lacey, Carrier Street Clinic (Benalla) on 5th February, and then again on 11th Feb by Dr Anthony Knight, Carrier Street Clinic (Benalla), Both of these visits were to seek support from stress and anxiety I was feeling about work.”

    (d)The Applicant’s injury was contributed to, to a significant degree, by her employment.

    (e)That injury resulted in a degree of impairment of function and, particularly, incapacity for work at all, or at the level immediately prior to the happening of the injury, that is, the Team Leader in the Albury Office of the Child Support Services where she worked full-time standard hours and also regular Tuesday evening overtime.

    [9] T5 at p.15.

    [10] T56 at p.221.

    Medical Evidence

34. The Applicant identified a number of work-related factors which had contributed to the development of her anxiety and depression[11], including:

    (a)the performance management of two staff members prior to transferring to the Albury office, involving complaints against her of discrimination and bullying;

    (b)the performance management of Ms H shortly after arriving in the Albury office which involved aggressive and intimidating behaviour towards her which she found disturbing in the context of her previous experiences;

    (c)an unwelcoming attitude from some members of the leadership team in Albury, particularly Ms Hines;

    (d)resistance by other members of the leadership team to various proposals she made for changes;

    (e)general stress in coming to grips with the new form of work she was to deal with in the Albury office; and

    (f)the events of 22 January 2019.

    [11] Exhibit A1.

35. The Applicant tendered a medical report of Dr Tagkalidis, consultant psychiatrist, dated
    

    [12] Exhibit A3.

    4 February 2021[12] and Dr Tagkalidis gave oral evidence at the hearing.

36. Dr Tagkelidis saw the Applicant on 4 February 2021 for the purpose of an independent psychiatric assessment. He concluded that the Applicant was then suffering from an adjustment disorder with mixed anxiety and depressed mood which had partially abated and that her current functioning and coping had not been compromised by any personality-based factors.  He stated in his report that the Applicant had clearly developed a depressive and anxiety syndrome consequent to the incidents described, and that these incidents were a direct contributing factor to her condition.  He clarified in his oral evidence that the incidents were a reference to a series of incidents reported to him by the Applicant including the informal counselling by Ms Hines on 22 January 2019.  Dr Tagkalidis stated in his report that [t]he relevant workplace events contributed 100% of the Applicant’s emotional distress during the relevant period and that her emotional impairment had led to a very significant functional decline which had encompassed vocational, domestic, social and leisure activities.  He stated that the Applicant had no work capacity for approximately six months in the period that she was off work. He noted that at the time of his assessment in February 2021 the Applicant’s prognosis was positive and improving with time.

1. Dr Tagkelidis was asked in cross examination to comment on the Applicant’s response to the informal counselling by Ms Hines on 22 January 2019 and his description of her response as a panic attack, crying in his clinical notes.  He responded[13]:

   I’d agree its an acute response, and all I can say, I guess, is that, looking through the history that I’ve documented, it would seem to me fairly clear to be one of many points of stress that she would have experienced.  But I’d agree, yes, I’d agree, a significant one in that regard, yes.

   [13] Transcript 17 August 2021 at p.87.35.

2. The Applicant tendered a medical report of Ms Sandi Dunne, the Applicant’s treating psychologist, dated 15 July 2021[14] which summarised her diagnosis of the Applicant’s condition as Adjustment Disorder with mixed anxiety and depression as a result of treatment received at her workplace. 

   [14] Exhibit A4.

3. The Applicant also relied on a medical report of Dr John Lambert, her treating doctor, dated 15 July 2021[15], and earlier reports included in the T documents dated 8 May 2019[16], 22 May 2019[17] and 26 June 2019[18].

   [15] Exhibit A5.

   [16] T6 at pp. 17-18.

   [17] T17 at pp.35-36.

   [18] T44 at pp.175-176.

4. Dr Lambert first saw the Applicant on 2 May 2019 when she reported that since starting her new job in the Albury office, she was feeling persecuted by work colleagues and felt put down, under scrutiny and not valued.  Dr Lambert diagnosed the Applicant as suffering from Major Depression and anxiety.  He stated that the Applicant’s workplace psychological injury was a material contributing factor to her incapacity for work and need for ongoing treatment.

5. The Respondent tendered a medical report of Dr Sheehan, consultant psychiatrist, dated 13 May 2021[19], 18 February 2021[20], and relied on his earlier reports of 27 June 2019[21],
   

   [19] Exhibit R8.

   [20] Exhibit R7.

   [21] T45.

   [22] Exhibit R5.

   [23] Exhibit R6.

   7 October 2019[22] and 8 January 2020[23]. Dr Sheehan gave oral evidence at the hearing.

6. The history taken by Dr Sheehan in his third report notes that the Applicant had said in relation to the events of 22 January 2019 that there was a build up leading to a breaking point on 22 January 2019.  Dr Sheehan noted in his report the observations of Dr Kevin O’Daly, consultant psychiatrist in his report of 28 June 2019[24] regarding the Applicant and his conclusion that the Applicant’s employment had contributed to a significant degree to the causation of her diagnosis, interacting with her personality style and non-work contextual factors.  Dr Sheehan confirmed a diagnosis of chronic major depressive disorder with persisting mild residual symptoms not inconsistent with a diagnosis of adjustment disorder.

   [24] T46.

7. Dr Sheehan referred to his instructions noting significant events leading to the onset of the Applicant’s condition including a note of 23 November 2018 which recorded the Applicant stating that she felt exhausted and stressed in response to being subject to allegations of bullying and harassment.  In answer to specific questions put to him by his instructors regarding the significance of the events on 22 January 2019 Dr Sheehan opined that:

   The events described on 22 January 2019 are relevant with Ms Rodway describing that the events of that day being a “breaking point” and it is probable that the meeting with her supervisor and subsequently reading an email regarding that meeting were significant in the onset of her panic attack and subsequently her mood changes.

8. While Dr Sheehan identified the events of 22 January 2019 as significant, he acknowledged in cross examination that other events in the Applicant’s employment contributed to her condition and that the events of 22 January 2019 may be over emphasised given the build-up of stressors from employment, and that event may have assumed greater significance because it was only the last event in the chain leading to overt symptoms.

   Conclusion

9. On the basis of this evidence and having regard to the concessions of the parties, the Tribunal is satisfied that the Applicant suffered from an adjustment disorder with mixed anxiety and depression to which her employment with the Department of Human Services contributed to a significant degree.  The condition resulted from a build-up of stressors in her employment and was triggered by the informal counselling action of Ms Hines on
   22 January 2019.  The date of injury is 5 February 2019, being the date she first sought medical treatment for the condition.

10. The medical evidence further establishes that the Applicant’s adjustment disorder with mixed anxiety and depression resulted in her incapacity for work as defined in s 4(9) of the Act for work at all, or at the level of Team Leader in the Albury Office of the Child Support Services where she worked full-time standard hours and regular Tuesday evening overtime.

11. On this basis the Tribunal is satisfied that, but for any exclusionary provision in s 5A of the Act, the Applicant suffered an injury for which she was entitled to compensation under s 14 of the Act. 

    Exclusionary Provisions

12. The Respondent asserted that the Applicant’s adjustment disorder with mixed anxiety and depression was suffered as a result of the informal counselling action taken by Ms Hines on 22 January 2019, which considered in all the circumstances, was reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.

13. The relevant exclusion provision in this case is the exclusion in the definition of injury in
    s 5A(1) that injury 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.

14. Section 5A(2) provides that 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.

15. The element of the definition in s 5A(2) identified by the Respondent as relevant to this case is that in subparagraph (b).  However, the Respondent argued that the administrative actions listed in s 5A(2) are expressly not limited to those actions identified by subparagraphs (a)-(f)[25].

    [25] Citing Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, Drenth v Comcare [2012] FCAFC 86 and Comcare v Drinkwater [2018] FCAFC 62.

16. The medical evidence establishes that the informal counselling action taken by Ms Hines on 22 January 2019 was a contributing factor to the manifestation of symptoms of the Applicant’s injury.  While the informal counselling action was not the sole cause of the Applicant’s injury, the High Court has made it clear that it is sufficient if the administrative action is an event without which the employee's ailment or aggravation would not have been a disease.

17. The High Court stated in Comcare v Martin[26] :

    The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee's employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee "as a result of" reasonable administrative action taken in a reasonable manner in respect of the employee's employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee's employment which answers that description of reasonable administrative action.

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

    [26] (2016) 258 CLR 467 at [44]-[45].

18. The questions for determination here are therefore whether the informal counselling action by Ms Hines on 22 January 2019 was reasonable administrative action and whether it was taken in a reasonable manner in relation to the Applicant’s employment.

19. The evidence regarding the events of 22 January 2019 is generally uncontroversial.

20. There is no dispute as to what the Applicant actually said to Mr Steve Willis in the stand-up meeting that preceded her meeting with Ms Hines.  During the stand-up meeting,
    Mr Willis informed the Applicant that she (the Applicant) would be chairing the leadership meeting to take place that afternoon and that her service support officer,
    

    [27] Transcript P-30 line 6.

    Ms Marsh, would be taking the minutes.  The Applicant’s immediate response was to say: “No, I’m not, and, no, she won’t”[27]. The Applicant was not aware at the time that there was a roster for the rotation of the chair of the meeting and for the chair’s service support officer to take the minutes.  In addition, Ms Marsh was unavailable because she was scheduled to be involved in refresher training later that afternoon.

21. The Applicant’s evidence was that immediately after the stand-up meeting broke up
    

    [28] Exhibit A2 at [35].

    Ms Hines pulled me into a room in the office where others could see I was being spoken to, and suggested that my answer to Steve’s announcement was somehow offensive[28]. The Applicant said that later in the morning she saw Mr Willis and apologised to him for any offence that might have been taken to her comment.  She stated that Mr Willis did not say he had taken offence to her response and looked confused as to why she would apologise.  She said he actually apologised to her for not providing her with the roster for the afternoon meetings.

22. Ms Hines gave a slightly different account of the meeting with the Applicant.  She stated[29]:

    Kay had been very rude to a person in the meeting (Steve) who was acting in that meeting as site admin officer.  Steve had said that Kay was clear for the afternoon’s leadership meeting and her service support officer would attend.  Kay’s response was along the lines of “ No I’m not and no she won’t be”.  Other people in the meeting jumped in and said the service support officer should be attending.  I said to Kay that we should have a catch up after the meeting.  She said she had something on and then we agreed to catch up later in the day.  Steve was clearly very embarrassed at Kay’s rudeness.

    When Kay and I caught up later in the day on 22 January we had a discussion about her rudeness and I sent her a summary of the conversation.  I raised what had been said to Steve and my observations and told her that such behaviour was not appropriate.  She said she was aware that she could sometimes be like that and that she had already apologised to Steve.

    [29] Exhibit R1 at [36]-[37].

23. The only substantive difference between the accounts of the Applicant and Ms Hines regarding the private meeting following the stand-up meeting was the timing of the meeting and the Applicant’s apology to Mr Willis.  The Applicant was sure she met with Ms Hines immediately after the stand-up meeting and that she apologised to Mr Willis after her meeting with Ms Hines.  Ms Hines was sure that she met with the Applicant later that morning and after the Applicant had spoken to Mr Willis.  Little turns on the discrepancy.  Both witnesses agreed that the Applicant had spoken to Mr Willis and that the meeting between them had taken place sometime in the morning following the stand-up meeting.  To the extent that anything turns on the issue the Tribunal favours the version given by
    Ms Hines as it is consistent with her email of later that day.

24. Ms Hines acknowledged that there was nothing offensive or inappropriate in the use of the actual words spoken by the Applicant to Mr Willis.  Her concern was the manner and tone with which the words were delivered.

25. Ms Jeanette Kiervan, an acting team leader in the Albury office, also provided a statement[30] and gave evidence at the hearing.  She was present at the stand-up meeting on 22 January 2019 and expressed a similar view to Ms Hines regarding the tone of the Applicant’s comment to Mr Willis at the stand-up meeting.  However, her views were not sought by Ms Hines before speaking with the Applicant on 22 January 2019 and her evidence added nothing to an understanding of the nature of the informal counselling by Ms Hines.  She was not present during the face to face meeting between Ms Hines and the Applicant and had no knowledge of what prompted the email sent by Ms Hines.

    [30] Exhibit R3.

26. Ms Brotherson-Clarke, the Acting National Manager and Services Manager in the Albury office, provided four written statements[31] and gave oral evidence at the hearing.  She confirmed in her evidence that she was interstate on 22 January 2019 and had no direct knowledge of the interactions between Ms Hines and the Applicant on that day.  She said she was informed of the events by the Applicant who telephoned her on 22 January while she was in South Australia. She said she later spoke to Ms Hines about the incident.  She expressed support for the actions of Ms Hines in speaking to the Applicant in stating:

    I do think it is appropriate that when any leader sees a behaviour they think is not supportive they should speak up and that I did not think Tanya’s doing so was inappropriate[32].

    [31] T32, T56, T66 and Exhibit R4.

    [32] Exhibit R4 at [42].

27. However, Ms Brotherson-Clarke added that she had advised Ms Hines that if there were further reasons for her to speak with Kay about behaviour Tanya should speak to me first to ensure I have visibility and can determine a way forward that feels supportive of Kay[33].  Ms Brotherson-Clarke was the Applicant’s immediate superior and the manager to whom she reported.

    [33] Ibid.

28. Ms Hines explained that her actions in raising her concerns directly with the Applicant were consistent with a program recently conducted in the Albury office and known as Creative, Healthy & Engaged Workplaces Initiative (CHEWI), authored and presented by an external consultant, Dr Felicity Lawrence.  The Employer Statement of 16 February 2021 described the program as aimed at enhancing workplace culture for the site in order to deal with “a higher rate of unscheduled absence and lower than average APS Census results”.
    Ms Brotherson-Clark confirmed in her evidence[34] that CHEWI was introduced into the Albury office prior to her arrival and its recommendations had been implemented by
    

    [34] Transcript P-159 at lines 43-46.

    Ms Hines when she was Acting Services Manager.  She stated that the recommendations […] included things like celebrating people's great achievements and interrupting behaviours that were not appropriate or helpful in the workplace and giving people gentle reminders around that. You know, it's a general piece of cultural work which is not unusual.

29. The CHEWI program is essentially about personal empowerment.  The course material[35] states that the program:

    ...acts as a circuit breaker for accepted, normalised unhealthy behaviour and helps the people in these teams and workplaces self-design healthier team or organisational culture that make sense to them. It encourages employees to take action themselves to deal with inappropriate conduct in the workplace.[36]

    [35] Tribunal Book at p.730.

    [36] Ibid p.732.

30. An employee acting in accordance with the CHEWI principles is encouraged to apply strategies to quickly and accurately spot and safely interrupt unhealthy behaviours early, before they have a chance to harm mental or physical well-being, creativity and engagement. By endorsing the CHEWI program the Employer encourages and empowers employees to act on their own assessment of the behaviour of other employees and to take steps themselves to address that behaviour and safely interrupt it.

31. In contrast, the Respondent’s Preventing and Resolving Workplace Bullying Policy[37] provides a means for employees to raise their concerns with management and have the inappropriate conduct dealt with by the formal administrative processes. Before inappropriate behaviour can be classed as behaviour warranting employer action under the Policy it must conform to the definition of bullying, namely: repeated and unreasonable behaviour directed towards an individual or group of staff and other workers that creates a risk to health and safety. Similarly, the Respondent’s Performance Management Policy[38] is a formal process involving an employee’s immediate supervisor with formal counselling and proper documentation.

    [37] T36 at pp.120-126.

    [38] T35 at p.115-119.

32. To satisfy the requirement that it be administrative action, conduct must be directed at the administration of the relationship between the employer and the specific individual employee. The Federal Court observed in Commonwealth v Reeve[39] :

    In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer.

    [39] [2012] FCAFC 21 at [30] per Gray J.

33. The term does not encompass the general supervision of the performance of work.  The majority in Commonwealth v Reeve[40] said:

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

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

    [40] Ibid per Rares and Tracey JJ. at [73]-[74].

34. In a more general sense administrative action is distinguishable from other conduct of individual persons in an organisation. The Cambridge English Dictionary defines administration as the arrangements and tasks needed to control the operation of a plan or organisation.  Merriam Webster defines it as the performance of executive duties. The Collins English Dictionary defines it as the range of activities connected with organizing and supervising the way that an organisation or institution functions. It is the actions of individuals directed at the control and operation of the organisation which has the character of administrative action.  Interactions between individuals at a personal level, even if they involve persons with managerial or supervisory responsibilities, are not administrative in nature unless they are for the purpose of exercising control and operation of the organisation. 

1. The informal counselling action taken by Ms Hines had two distinct components.  First, the face-to-face conversation Ms Hines had with the Applicant following the stand-up meeting on 22 January 2019, and secondly, the email sent by Ms Hines to the Applicant later in the day.

   Face-to-face Conversation

2. The important features of the informal counselling by Ms Hines in the face-to-face conversation with the Applicant were:

   (a)Ms Hines had no supervisory authority over the Applicant;

   (b)she did not discuss her intended action with Ms Brotherson-Clarke, the Applicant’s actual supervisor, beforehand;

   (c)she did not act under, or by reference to, any formal policy of the employer;

   (d)she did not act on the basis of any complaint by another employee; and

   (e)she undertook no investigation of the incident and particularly the actual reaction of Mr Willis and others at the stand-up meeting and relied entirely on her subjective assessment of the anticipated effect of the comment on those people.

3. Properly construed the actions of Ms Hines in counselling the Applicant were to convey her personal views regarding the appropriateness of the manner in which the Applicant addressed Mr Willis in the context of the stand-up meeting.  The purpose of the discussion was to convey to the Applicant her personal subjective opinion.  She made no attempt to couch her criticism of the Applicant in terms of any specific policy of the employer. That this approach was encouraged by the CHEWI program as endorsed by the employer does not render the action administrative in nature.  The tenor of the CHEWI program is to empower employees to act on their own sense of appropriateness to self-design healthier team or organisational culture that make sense to them.  It is essentially a program relevant to the manner of performance of work generally. The fact that the employer encourages employees to express their views in the workplace does not mean that those views are reflective of the views of the employer and actions taken in pursuit of those views are properly characterised as administrative actions.

4. On this basis the Tribunal is not satisfied that the private conversation between Ms Hines and the Applicant on 22 January 2019 was itself administrative action.

   The Email

5. That Ms Hines elected to confirm the substance of the conversation in an email does not change the essential character of the exchange so as to render it administrative action.   The production of an email was not pursuant to any policy or other administrative process and it was merely reflective of the personal face-to-face discussion between Ms Hines and the Applicant earlier in the day.

6. The sending of the email by Ms Hines was nevertheless a significant step, which understandably was seen as an escalation of the incident by the Applicant.  It, more than the face-to-face discussion, was the trigger for the onset of the Applicant’s symptoms.  In response to questions from Mr Carey, her counsel, the Applicant stated in her oral evidence[41]:

   MR CAREY: What was it, about getting this email, that made you react to it?

   MS RODWAY: So, I didn’t agree with the comments, in relation to her saying that – I think the word was, ‘abrasive’, and that my behaviour was not appropriate? I didn’t agree with that. I felt that the email was unnecessary. It was unexpected, that she had documented that, in that way. I immediately felt that it was sort of targeted – the email, to be able to be used, sort of, against me, recording a document – recording that as a document. Whether she was pursuing possible behaviour against me. Which was something new to me. And – again, unexpected. And also, that it was from Tanya – it wasn’t from my supervisor – raising this, as her perceived concerns. It was a very difficult email to read. Just the wording that she utilised in those first two sentences.

   [….]

   MR CAREY: […] your reaction, which you’ve described, is it - you broke down, didn’t you?

   MS RODWAY: Yes.

   MR CAREY: You were crying, intermittently, through the afternoon?

   MS RODWAY: Yes.

   [41] Transcript P-38 line 20-44, and see also T43 at p.171.

7. The Tribunal is satisfied that, in the context of the CHEWI program, it was not unreasonable for Ms Hines to express her views directly to the Applicant in private as one colleague to another.  However, it was quite another matter for Ms Hines to confirm that private discussion in an email. The transmission of an email on the employer’s IT system has the effect of creating an enduring record of the conversation accessible to others in the organisation.  It was intended to, and had the effect of, putting the conversation ‘on the record’.  It elevated an informal transient private admonishment to a permanent written record of disapproval, one that could potentially be used adversely against the Applicant’s interests.

8. It is one thing for an employee to speak privately with another and express their personal views about the appropriateness of their conduct.  It is quite another to put one’s concerns in writing. Where a written record is created it carries the implication that the communication has or may become public and that:

   (a)the conduct involved is regarded as sufficiently serious to warrant more formal communication; and

   (b)the criticism conveyed face-to-face needed to be reiterated.

9. At the time Ms Hines sent the email to the Applicant:

   (a)she had no evidence that anyone at the meeting had actually been offended by the Applicant’s comment;

   (b)she was aware that the Applicant had apologised to Mr Willis; and

   (c)the Applicant had accepted her verbal criticism without objection.

10. In these circumstances it was not reasonable for Ms Hines to take matters further by putting her concerns in writing. The email was unwarranted and an excessive response to the statement by the Applicant to Mr Willis at the stand-up meeting in the circumstances. It was neither administrative in nature nor reasonable. 

11. On this basis the Tribunal is not satisfied that the informal counselling action taken by
    Ms Hines on 22 January 2019 was reasonable administrative action taken in a reasonable manner and accordingly the exclusionary provision in s 5A(1) of the Act does not apply to the Applicant’s injury.

    Conclusion

12. For the reasons discussed, the Tribunal is satisfied that:

    (a)the Applicant sustained an adjustment disorder with mixed anxiety and depression to which her employment made a significant contribution;

    (b)this constituted an ailment and therefore an injury within the meaning of s 4 of the Act; and

    (c)the injury resulted in the Applicant having an incapacity for work as defined in s 4(9) of the Act.

13. The Tribunal is not satisfied that the Applicant’s injury was a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

14. Accordingly, the correct and preferable decision is to set aside the decision under review and determine that the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the injury.

    DECISION

15. The decision of the delegate of the Respondent dated 27 September 2019 affirming the determination dated 9 July 2019 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) is set aside and in its place the Tribunal determines that:

    (a)the Applicant suffered incapacity for work as a result of an injury, namely adjustment disorder with mixed anxiety and depression, the subject of a claim for compensation dated 10 May 2019, to which her employment with the Department of Human Services contributed to a significant degree (Injury);

    (b)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;

    (c)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and

    (d)the Respondent is to pay the Applicant’s costs and disbursements of these proceedings pursuant to s 67 of the Act.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Member R. West

...............................[SDG].....................................

Associate

Dated: 7 February 2022

Date(s) of hearing:	15 16, 17 and 18 August 2021 and 6 September 2021
Counsel for the Applicant:	Mr Mark Carey
Solicitors for the Applicant:	Nevin Lenne Gross
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Morray & Agnew Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF LODGEMENT
A1	Statement of Kaylene Mary Rodway dated 31 May 2020	Applicant	1 June 2020
A2	Statement of Kaylene Mary Rodway dated 11 August 2021	Applicant	12 August 2021
A3	Report of Dr Matthew Tagkalidis dated 4 February 2021	Applicant	23 February 2021
A4	Report of Sandi Dunne dated 15 July 2021	Applicant	27 July 2021
A5	Report of Dr John Lambert dated 15 July 2021	Applicant	27 July 2021
R1	Statement of Tanya Michelle Hines dated 1 December 2020	Respondent	10 December 2020
R2	Email Tanya Hines to Applicant dated 22 January 2019	Respondent	21 May 2021
R3	Statement of Jeanette Kiervan dated 10 August 2021	Respondent	10 August 2021
R4	Statement of Melissa Brotherson-Clarke dated 1 December 2020	Respondent	10 December 2020
R5	Report of Dr Anthony Sheehan dated 7 October 2019	Respondent	19 March 2021
R6	Report of Dr Anthony Sheehan dated 8 January 2020	Respondent	19 March 2021
R7	Report of Dr Anthony Sheehan dated 18 February 2021	Respondent	19 March 2021
R8	Report of Dr Anthony Sheehan dated 13 May 2021	Respondent	19 March 2021

ANNEXURE A – LIST OF EXHIBITS