Sanchez and Comcare (Compensation)
[2025] ARTA 79
•5 February 2025
Sanchez and Comcare (Compensation) [2025] ARTA 79 (5 February 2025)
Applicant:Luis Sanchez
Respondent: Comcare
Tribunal Number: 2023/6151
Tribunal:Member McLean Williams
Place:Brisbane
Date:5 February 2025
Decision:The Tribunal affirms the decision under review.
.......................[SGD]......................
General Member McLean Williams
CATCHWORDS
Workers Compensation (Cth) – Injury – Disease – Ailment – Whether injury arose out of or during the course of employment – injury in the nature of an adjustment disorder in response to a workplace investigation – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Work Health and Safety Act 2011 (Cth)
CASES
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Statement of Reasons
Preliminary
The Applicant is Mr Luis Sanchez, who was born on 24 December 1983.
At all times relevant to this matter Mr Sanchez was employed by the National Disability Insurance Agency, (‘the NDIA’).
On 12 August 2023 Mr Sanchez commenced an Application for Review[1] before the Administrative Appeals Tribunal (‘AAT’) thereby seeking further review of an internal review decision as had been made by a Delegate of Comcare on 14 June 2023 (‘the Respondent’). The Delegate’s decision on that date had affirmed an earlier determination (made on 23 January 2023), to decline liability to pay Mr Sanchez any compensation pursuant to s.14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’), for Mr Sanchez’s claimed condition of adjustment disorder with mixed anxiety and depressed mood (‘the reviewable decision’).
[1]T1.
This Application for Review was heard before the Tribunal over two days, comprising 6 – 7 November 2024, inclusive.
These now are the Tribunal’s reasons for affirming the reviewable decision.
Background and Chronology
On 14 December 2018, Mr Sanchez commenced employment with the NDIA at the Chermside Office in Brisbane, as an APS-3 equivalent Access Officer (Labour Hire).[2]
[2]T26/147.
On 11 November 2019, Mr Sanchez was offered a short-term contract as an APS-3 NDIA Access Officer (again at Chermside), until 10 November 2020. Mr Sanchez’s short-term contract was thereafter extended, on two occasions (17 June 2020, and 4 March 2021), thus taking the contract through to an eventual expiry date of 10 November 2022.[3]
[3]T26/147.
On 8 April 2022, ‘GD’ a female work colleague of Mr Sanchez in the Chermside Office suffered a panic attack, and an ambulance was called. Shortly afterwards, GD complained to her Team Leader about workplace behaviours by Mr Sanchez, which she claimed to be inappropriate.[4]
[4]T46/522.
That same day the Chermside Office of the NDIA referred the fact of the complaint about Mr Sanchez by GD to the NDIA’s Human Relations Advisory Service Branch.[5]
[5]T45/513.
On 26 May 2022 Ms Dawn Yates (Assistant Director, Workplace Integrity) met with local NDIA ‘Team Managers’ Ms Britt Lord (Assistant Director), and Ms Laura Ramirez (Acting Director), regarding the process that should be followed when dealing with GD’s complaint about Mr Sanchez. This meeting was followed by an e-mail from Ms Yates, confirming the initial procedure that should be followed.[6]
[6]T51/549.
On 2 June 2022 Mr Sanchez attended a meeting with Laura Ramirez (Acting Director, Access Officer Team) and Ms Lani Schwaiger (NDIA Human Resources Advisor). Ms Jasmine Box accompanied Mr Sanchez during this meeting as his ‘support person’. At the meeting, Mr Sanchez was told that a complaint of inappropriate behaviour had been made against him by an (at that stage unnamed) female employee, and he was given an initial opportunity to respond to the allegations, which were described to him in broad terms.[7] Thereafter Mr Sanchez took the remainder of that day off, on personal leave.[8]
[7]T11/54.
[8]T44/508
On 6 June 2022 Ms Laura Ramirez sent an e-mail to Mr Sanchez providing a summary of the meeting that had been conducted on 2 June 2022. Attached to the e-mail was a copy of the APS Code of Conduct, as well as a copy of the APS Employment Principles and Values.[9]
[9]T11/54.
On 7 June 2022 Mr Sanchez sent an e-mail to Ms Ramirez. Therein, Mr Sanchez recorded that:
(a)the allegations as notified on 2 June 2022 were extremely upsetting, and these had come as a complete surprise;
(b)he required further particulars of each of the allegations, in order to be able to provide his response;
(c)he had been blindsided by the allegations, and had felt pressured to provide a response to them immediately, such that he felt that he had been pushed during the meeting to provide specific examples to validate the vague allegations, without time to properly consider his response. He found it extremely distressing to be expected to respond under duress.
(d)The meeting had been presented as an initial discussion to seek my initial response, however Mr Sanchez complained he had not been informed how the initial meeting might be used to influence any subsequent investigation, or of all of the steps involved in the investigative process.
On 7 June 2022 Ms Ramirez sent another e-mail to Mr Sanchez, in response to his e-mail to her of 6 June 2022. Ms Ramirez said that the purpose of the meeting on 2 June 2022 had been to have a preliminary discussion to seek information and an initial response from Mr Sanchez, and that it was not intended as a disciplinary meeting. Ms Ramirez also advised that as the complainant had requested anonymity, specific details about the identity of the complainant could not be provided to Mr Sanchez at this stage. Ms Ramirez also informed Mr Sanchez that either the People and Culture or Workplace Integrity Team would contact Mr Sanchez as a next step.[10]
[10]T13/61.
On 7 June 2022 Mr Sanchez responded to Ms Ramirez, stating that he did not consider it fair that his responses during the initial[11] meeting would impact on next steps in the investigation, and that the lack of clarity and Ms Ramirez’s inability to provide particulars at that stage was causing him distress. Mr Sanchez also said that he would fully cooperate with the investigation process - on the proviso he was fully informed of the relevant policies, and procedures and was afforded procedural fairness.[12]
[11]2 June 2022
[12]T13/61.
On 14 June 2022, Ms Emily Dalton (Assistant Director, Workplace Integrity) recommended that the Delegate consider commencing a formal Code of Conduct investigation into the allegations regarding Mr Sanchez’s behaviour towards GD in the workplace.[13]
[13]T52/565.
On 30 June 2022 Mr Sanchez had a discussion with Ms Dawn Yates.[14] Following their discussion, Ms Yates sent Mr Sanchez an e-mail attaching a Notice of Suspected Misconduct dated 29 June 2022. This letter advised that an investigation was commencing to determine whether Mr Sanchez had breached the Code of Conduct in relation to his behaviours in the workplace. Mr Sanchez was advised that the subject behaviours related to allegations of inappropriate comments and behaviours by himself that were in the nature of sexual harassment and bullying towards GD, a female APS-3 NDIA Access Officer at Chermside, over the period from early 2019 until April 2022. The letter also advised Mr Sanchez that he would be given an opportunity to comment in response to the allegations.[15]
[14]T16/72
[15]T14/62-65.
On 7 July 2022 Mr Sanchez sent an e-mail response to Ms Dawn Yates requesting full disclosure of the specific details of the allegations (including dates, times and locations of the alleged incidents), and the names of any witnesses. Mr Sanchez also suggested that the complaint could be resolved by way of a simple conversation with GD.[16]
[16]T16/72.
On 7 July 2022 Ms Yates responded, advising that Mr Sanchez would be provided with further details of the allegations in due course. Further information was also provided by Ms Yates about the investigation process, and Ms Yates advised that the NDIA had, by now, decided to proceed by way of formal investigation.[17]
[17]T16/71.
On 1 August 2022 Mr Sanchez was issued with a Suspected Misconduct letter by Ms Emily Dalton, in her now capacity as the appointed investigator. The letter explained Ms Dalton’s role as the appointed investigator and noted that Mr Sanchez would soon be contacted to confirm a suitable time for an interview.
On 8 August 2022 Mr Sanchez was asked in an e-mail sent to him by Ms Dalton whether he wished to participate in an interview.[18] On the same day Mr Sanchez contacted Ms Dalton by an e-mail in reply, indicating that he declined to participate in an interview, and advised that he would instead prefer to respond to the investigator’s questions, in writing.[19]
[18]T19/79.
[19]T62/596.
On 11 August 2022 Ms Dawn Yates sent Mr Sanchez an e-mail with specific allegations and accompanying questions, as had been prepared by the investigator, Ms Emily Dalton.[20]
[20]T63/598.
On 13 August 2022 Mr Sanchez requested an extension of time within which to provide his response. This request was granted, until 25 August 2022. On 24 August 2022 Mr Sanchez requested another extension. This was also granted, until 29 August 2022.[21]
[21]T64, T65.
On 29 August 2022 Mr Sanchez provided detailed written answers to the investigator’s questions. His response was accompanied by seven (7) attachments.[22]
[22]T67.
On 13 September 2022 Ms Dalton sent an e-mail to the Applicant, asking two (2) further questions.[23] Mr Sanchez responded to these extra questions on 16 September 2022.[24]
[23]T25/138.
[24]T25/137.
On 4 October 2022 Ms Yates sent an e-mail to Mr Sanchez providing an update regarding the progress of the investigation. Ms Yates advised that a draft report would be provided to Mr Sanchez in the coming week or so.[25]
[25]T69/680.
On 11 October 2022 Ms Dalton produced a draft report in relation to the investigation. In that draft report, Ms Dalton had formed a provisional view that Mr Sanchez had breached the APS Code of Conduct.[26]
[26]T26/185.
The draft report was also provided to Mr Sanchez by Ms Yates on 11 October 2022, as an attachment to an e-mail. Mr Sanchez was then afforded until 18 October 2022 to provide any response to the draft report.[27]
[27]T30/233.
On 12 October 2022 Mr Sanchez e-mailed Ms Yates requesting an extension until 15 November 2022 to provide his response to the draft report. Mr Sanchez also requested a full transcript of Ms Dalton’s interviews with witnesses.[28]
[28]T30/233.
On 13 October 2022 Ms Yates sent Mr Sanchez an e-mail granting him until 25 October 2022 to provide any response to the draft report, yet also advising that the NDIA would not be providing him with the requested transcript of witness interviews.[29]
[29]T30/232.
On 21 October 2022 Mr Sanchez again e-mailed Ms Yates requesting another time extension to provide his response. In part, Mr Sanchez wrote:
Please allow me to first mention how difficult it has been for me to write this e-mail. The emotional and psychological stress of this nightmare has only been growing exponentially with every interaction and injustice throughout this process.
…/
Finally, thank you for the reminder of the EAP. I find it quite absurd that the organisation exacerbating psychological stress on me is also suggesting help for the damage being caused. In the writing of this I have had a few breakdowns, so please forgive me the lateness in my response.
On 24 October 2022 Ms Yates e-mailed Mr Sanchez granting him a further extension for his response to the draft report, until 28 October 2022.[30] Mr Sanchez responded later that same day requesting another extension beyond that date.[31] Ms Yates then responded further, now allowing Mr Sanchez until 31 October 2022 for any response.[32]
[30]T30/228
[31]T30/227.
[32]T30/227.
On 10 November 2022 Mr Sanchez’s fixed term contract of employment with the NDIA expired. No further steps were taken by the NDIA after 10 November 2022 in relation to the workplace investigation, or the draft report, on the basis that Mr Sanchez was no longer an employee.
Also on 10 November 2022, Mr Sanchez consulted with his general practitioner, a Dr Ali Nobari, of the ‘Toowong Super Clinic’. Clinical notes recorded by Dr Nobari on 10 November 2022 specify the following:
Surgery Consultation
Recorded by Dr Ali Nobari Visit date: 10/11/2022
Recorded on 10/11/2022
Harassment, bullying at work
False allegations against him
Stressed, high anxiety
Low mood, poor sleep and appetite, had suicidal thoughts at some stage, but in control, no plan
Feels angry
Adjustment disorder with depressed mood
Counselling recommended.
DASS-21 form given, to book a long appt for MHCP
WC med cert issued
Reason for visit:
Mental health care assessment
Workers’ Compensation certificate
Actions:
Letter printed.
Letter written re: Qld work capacity certificate.
On 31 November 2022 Mr Sanchez provided his responses to Ms Dalton’s draft investigation report.[33]
[33]T31.
On 14 November 2022 Mr Sanchez again saw Dr Nobari. Dr Nobari’s clinical records from that consultation record:
Surgery consultation
Recorded by Dr Ali Nobari Visit date: 14/11/2022
Recorded on: 14/11/2022
For MHCP and med cert
Harassment, bullying at work
False allegations against him
Stressed, high anxiety
Low mood, poor sleep and appetite, had suicidal thoughts at some stage, but in control, no plan
Feels angry
Adjustment disorder with depressed mood
DASS-21=21-7-21
False allegations against him
Reason for visit:
Mental health care coordination
Actions:
Documents given to patient.
Letter to Anxiety House printed.
Letter written to Anxiety House re. Specialist referral.
Letter to Toowong Specialist Clinic printed.
Letter written to Toowong Specialist Clinic re. Specialist referral.
On 17 November 2022 Ms Yates e-mailed Mr Sanchez, attaching a letter advising that because Mr Sanchez was no longer an APS employee, the investigation had been ‘closed’.[34]
[34]T32, T33.
Als on 17 November 2022 Mr Sanchez completed an Injury Statement for Comcare purposes, which records the following:
[Date of Injury]: 02/06/22 – 10/11/22
[When did your injury happen or when did you notice your disease?]:
From the time of initial meeting 2 June 2022, when HR and an assistant director Laura Ramirez interrogated me and asked me inappropriate questions under duress, I began to feel severe stress, such that I had to leave work early that day.
Upon being provided with interview questions from the investigator which were also leading, vague, biased and inappropriate on 11th August 2022.
Receiving the report from the investigator on 11 Oct 2022 revealed a plethora of evidence of unreasonable action against me in the process if the investigation (e.g.: process not followed, Team leader lying about me/collaborating with complainant)
Through this period, I slept very little, took 7 weeks leave from work.
On 18 November 2022 Mr Sanchez lodged a workers’ compensation claim for adjustment disorder with depressed mood, with symptoms first appearing on 2 June 2022 at 11.00am, which he attributed to his having been ‘subject to a false, vexatious, and malicious accusation of sexual harassment and bullying by a colleague’ and his being ‘subject to unreasonable, biased, and unfair management action over a period of time starting from 02.06.22 to 10.11.22’.[35]
[35]T5.
On 23 November 2022 Mr Sanchez provided a ‘statement of injury’ with 25 attachments. In part,[36] Mr Sanchez stated:
To summarize: Since 2 June 2022 I have been subject to unreasonable management action in connection to false allegations of sexual harassment and bullying made by a colleague. The extent of the unreasonable action is outlined in the document “Attachment O – Response to Report”.
Procedural fairness has not been granted to me at any stage of the process, and basic policies and procures [sic] of the NDIA have been ignored. Team leaders have lied (shown in response to report), my direct manager has collaborated with the complainant to support her version of events and ignored explicit directions by his superior to address the issue informally with me as per standard protocol (shown in response to report), denying me the opportunity for an informal/local level resolution to the dispute. The ensuing investigation was also rife with bias against me, primarily displayed by the investigator who has shown relentless prejudice and unprofessionalism (shown throughout response to report in countless glaring and alarming examples).
[36]T10 to T36.
On 22 December 2022 the NDIA provided an ‘Employer Statement’. By way of that employer statement, the NDIA disputed that Mr Sanchez’s employment had been a contributing factor to his claimed condition, and submitted that if employment was ultimately found by Comcare to be a significant contributing factor for the cause of the claimed condition, the condition was not compensable under the SRC Act because it arose as a result of ‘reasonable administrative action taken in a reasonable manner in respect of’ Mr Sanchez’s employment.[37]
[37]T43/503.
On 4 January 2023 Mr Sanchez was examined at the behest of Comcare by Dr Brendan Smith, a psychiatrist. On that date Dr Smith undertook a ‘telehealth’ assessment, whereupon Mr Sanchez informed Dr Smith that his mental health had been good for his entire life, at least until an incident at work, on 2 June 2022.
Mr Sanchez told Dr Smith that on 2 June 2022 he had been called into a meeting at work and was informed by management that a complaint had been made against him entailing allegations of sexual harassment and bullying that were alleged to have taken place over the previous three years. Mr Sanchez then told Dr Smith that he was extremely shocked by this news, and he had denied behaving inappropriately at work. Dr Smith was further told that Mr Sanchez had left this meeting feeling significantly stressed and anxious, and that these symptoms then escalated over the ensuing weeks and months, as the investigative process unfolded.
In his report,[38] Dr Smith opined:
“I consider that the whole cause of Mr Sanchez’s adjustment disorder to be the workplace investigations of allegations made against him.
I am of the opinion that there are no other factors involved. I am therefore of the opinion that this matter has contributed 100% to this condition.
This factor first contributed on 2 June 2022.
This factor continues to contribute to Mr Sanchez’s current condition, particularly because there has not been a resolution of the investigation. This has left Mr Sanchez feeling that there has not been closure regarding the accusations against him”.
[38]T82.
On 23 January 2023 Comcare denied Mr Sanchez’s Application for Compensation. The Delegate accepted that Mr Sanchez had suffered an adjustment disorder with mixed anxiety and depressed mood, and that this was caused - to a significant degree - by Mr Sanchez’s employment at the NDIA. However, liability for the payment of any compensation was denied, on the basis that the condition had arisen in consequence of reasonable administrative action taken in a reasonable manner in relation to Mr Sanchez’s employment.
On 27 January 2023 Dr Ali Nobari provided another workers’ compensation work capacity certificate, specifying that Mr Sanchez had adjustment disorder with depressed mood. The certificate indicated that Mr Sanchez had specified that this injury had occurred over the period from 2 June 2022 until 10 November 2022, and that Mr Sanchez had first sought medical treatment from Dr Nobari on 10 November 2022. Dr Nobari recorded that Mr Sanchez’s stated mechanism of injury as ‘Harassment, bullying at work, unreasonable management action’.[39]
[39]T1.
On 12 May 2023 Mr Sanchez requested reconsideration of the primary Delegate’s decision to reject his Application for Compensation on grounds that:
‘I do not consider Comcare undertook sufficient investigations of the claim, did not consider relevant information, and did not properly apply section 5A(1) when determining my claim’.[40]
[40]T88.
On 14 June 2023 a Delegate affirmed the decision dated 23 January 2023, on the same grounds as the primary Delegate (‘the internal review decision’).[41]
[41]T98.
On 12 August 2023 the Applicant applied to the Administrative Appeals Tribunal for a review of the internal review decision.[42]
[42]T1.
On 14 October 2024, the AAT ceased operations to be replaced by the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised prior to 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
These now are the Tribunal’s reasons for affirming the reviewable decision.
Applicant’s contentions
Broadly, Mr Sanchez contends that his adjustment disorder with anxiety and depressed mood was caused during his employment at the Chermside (Brisbane) Office of the NDIA, over the period from 2 June 2022 until 10 November 2022, as a result of ‘the whole of’ the workplace investigation of allegations made against him by a female co-worker:
“The whole of the workplace investigation included, but was not limited to, the attempt at local resolution prior to 02/06/2022, the meeting of 02/06/2022, and the formal Code of Conduct Investigation from 30/06/2022 up to and including 10/11/2022, which included the Interview Questions and my response, and the Draft Report and my response. Comcare has incorrectly limited the significant contributing factor to the meeting held on 02/06/2022. The meeting held on 02/06/2022 cannot be considered in isolation, as it is inextricably linked to unreasonable administrative actions taken by the Agency prior to the meeting, not least of which is my manager’s false statements that he had conducted interviews with me regarding the alleged conduct, which he then admitted never took place – all of which is catalogued in the documents provided and has at no point been addressed by Comcare. Comcare has not given any consideration to other aspects of the investigation process which occurred prior to and after 02/06/2022 and has insisted they are irrelevant with no further explanation than their preference for NDIA’s framing of events”.[43]
[43]T55.
Mr Sanchez contends that the reasonable administrative action exception contained in s.5A(1) of the SRC Act should be found by the Tribunal to not be applicable to exclude his condition from compensability, because the workplace investigation was neither ‘reasonable administrative action’, nor ‘taken in a reasonable manner’.
Evidence heard during the Tribunal hearing:
In addition to the Applicant, the Tribunal received oral evidence from the following witnesses:
-Ms Dawn Yates
-Ms Laura Ramirez; and
-Ms Emily Dalton.
Ms Dawn Yates
Ms Dawn Yates is the Director, Workplace Integrity in the Integrity, Safety and People Support Branch, People and Culture of the NDIA. Ms Yates told the Tribunal that on 8 April 2022 Mr Sanchez’s managers within the ‘Access Officer Team’ at Chermside had made an initial request for assistance to the ‘People and Culture Team’, following a complaint about Mr Sanchez made by a female co-worker, GD.
On 26 May 2022, Ms Yates had a discussion with Mr Sanchez’s local managers at Chermside, Ms Britt Lord and Ms Laura Ramirez, and advised them that it would be useful to have an initial response from Mr Sanchez for the ‘preliminary assessor’ to consider. That same day Ms Yates also sent an e-mail,[44] providing an outline of suggested ‘next steps’, and notes for discussion.
[44]Attachment A to statement by Ms Yates (Exhibit [3]).
Mr Sanchez attended a meeting on 2 June 2022 with Ms Laura Ramirez and Ms Lani Schwaiger, with Ms Jasmine Box as his support person. At that time Mr Sanchez was informed about the complaints by GD; given a broad outline of GD’s allegations; and asked for his initial comment.
Subsequently, in his response to the draft investigator’s report dated 31 October 2022 Mr Sanchez complained that the meeting on 2 June 2022 had not been conducted in accordance with the requirements of Chapter 8 of the Handling Misconduct Guide (‘Guide’). Yet, Ms Yates now claims before the Tribunal that Chapter 8 was not specifically applicable, as it applies to a formal misconduct investigation, which was not ‘on foot’ on 2 June 2022. Instead, Ms Yates says that the applicable guidance at this stage of the process is to be found in Chapter 4 of the Guide, which provides a framework on gathering ‘preliminary information’ to help agencies assess the seriousness of an incident, and to decide on a proportionate response. Ms Yates now maintains that the meeting conducted on 2 June 2022 was consistent with the approach outlined in Chapter 4 of the Guide.
On or about 17 June 2022, a decision was made by a Delegate to proceed via a formal Code of Conduct investigation. Ms Yates was assigned the role as ‘Case Manager’ for this investigation. Ms Yates believes that this was appropriate because:
(e)This course of action was consistent with the recommendations contained in the preliminary assessment report, dated 14 June 2022; and
(f)The decision was consistent with Chapter 4 of the Guide.
In response to Mr Sanchez’s complaint that the complaints made against him by GD ought to have been resolved by way of (informal) ‘local resolution’, Ms Yates informed the Tribunal that the preliminary assessment had identified that there had already been prior unsuccessful attempts at local resolution, and in all events, informal local resolution was not a mandatory requirement, and not in accordance with the Guide, which provides that the NDIA may determine to proceed directly to a formal investigation, particularly in circumstances wherein:
- the allegations are of a serious nature, such as conduct that meets the definition of sexual harassment and/or bullying, and may be a risk to health and safety.
- the conduct is alleged to be repetitive, or to have occurred over a prolonged period.
- there is prima facie evidence to support the allegations, or there are lines of enquiry most appropriately investigated via a formal process.
Ms Yates does not accept Mr Sanchez’s further complaint that he was not provided with ‘sufficiently specific’ details regarding the alleged behaviours, nor any information as to the identity of the complainant at a sufficiently early stage. Here, Ms Yates observes that section 7.60 of the Guide recognises that it ‘may not always be possible’ to give a person under investigation complete details of an alleged breach at the outset, such that it is appropriate to advise the person in writing of an outline of the allegations, at least as these are understood at that juncture. Ms Yates further observed that a fully particularised summary of the allegations was subsequently provided to Ms Sanchez, on 30 June 2022, as part of the ‘Notice of Investigation’ issued by Ms Dalton; and that Mr Sanchez also received written questions for his response from Ms Dalton on 11 August 2022; at which time he was also given further examples and details regarding the alleged behaviour.
Ms Yates also observes that Mr Sanchez was provided with a copy of the Draft Investigator’s Report and was then afforded an opportunity to comment on the proposed findings, as well as a number of extensions of time within which to provide any response to the draft report.
As to Mr Sanchez’s complaint that the Code of Conduct investigation was terminated upon the expiration of his contract of employment, with no outcome having been determined, Ms Yates observes that Mr Sanchez was advised, in an e-mail[45] on 25 May 2022 that the Code of Conduct applies to current APS employees, and that Mr Sanchez had also been advised in an e-mail[46] on 17 November 2022 that the Code of Conduct investigation had been ‘concluded and closed’ with no determinations having been made.
[45]Attachment B to Exhibit [3].
[46]Attachment C to Exhibit [3].
Ms Laura Ramirez
Ms Laura Ramirez is the Director of the Access Officer Team at the NDIA. Ms Ramirez informed the Tribunal that, on 8 April 2022, she had received a call from Ms Britt Lord (Assistant Director) after a female staff member at the NDIA Chermside Office had experienced a panic attack and paramedics had to be called. Ms Lord was instructed[47] to raise a WHS incident and to collate information from witnesses regarding the incident. Later that same afternoon, Ms Ramirez received an e-mail[48] from Britt Lord, which included a statement of events from another female staff member at Chermside who had been present when GD had her panic attack, and who had informed Ms Lord about certain matters involving Mr Sanchez and GD. At that juncture, HR was approached[49] for advice.
[47]Attachment A to Statement of Laura Ramirez (Exhibit [4]).
[48]Attachment B to Exhibit [4].
[49]Attachment C to Exhibit [4].
Ms Ramirez confirms that on 26 May 2022[50] Ms Yates had suggested she arrange a meeting with Mr Sanchez to seek his initial response to the allegations, and that on 2 June 2022 she and Ms Lani Schwaiger had met with Mr Sanchez who had brought Ms Yasmine Box with him as his support person.
[50]Attachment D to Exhibit [4].
During the meeting on 2 June 2022, Ms Ramirez says that she followed the suggested notes for discussion as had been provided to her by Ms Yates in the e-mail received on 26 May 2022, and that she had made it clear to Mr Sanchez that the meeting was just an initial conversation, and he was not forced to provide responses to any of the questions asked during this meeting, and would be given the opportunity to respond and add comments after the meeting.[51]
[51]Exhibit [4], paragraph 6.
After the meeting on 2 June 2022 Ms Ramirez sent Mr Sanchez a copy of the notes of their discussion.[52] On 7 June 2022 Mr Sanchez e-mailed[53] Ms Ramirez raising concerns that the allegations were ‘vague and non-specific’ and stating that he had been ‘completely blindsided’ on 2 June 2022, and complaining that:
“…I felt pressured to provide responses to the allegations immediately. Most distressingly, throughout the meeting, there were several instances where I was pushed to provide specific examples to validate the vague allegations without time to properly consider my response. I found it extremely distressing to have to provide responses under duress. If my responses from Thursday’s meeting will have any impact on the outcome of the investigation, I request that these factors are taken into consideration”.
[52]Attachment E to Exhibit [4].
[53]Attachment F to Exhibit [4].
On 7 June 2022 Ms Ramirez again e-mailed Mr Sanchez and assured that “the meeting on Thursday was a preliminary discussion to seek information and an initial response from you and not a disciplinary meeting”. Mr Sanchez was also told that he would be contacted again by either ‘People and Culture’ or the ‘Workplace Integrity Team’, “as soon as they consider the information provided to them. They will advise you what, if any, action will occur in relation to this matter”.[54]
[54]Attachment G to Exhibit [4].
Ms Emily Dalton
At the relevant time, Ms Emily Dalton had held the position of Assistant Director Workplace Integrity in the Integrity, Safety and People Branch of the NDIA. Previously this Branch had the simpler title HR Advisory Services.
Ms Dalton was appointed on 17 May 2022 by the NDIA Delegate as the person to conduct a preliminary assessment of the complaints that had been made by GD regarding Mr Sanchez.
On 14 June 2022 Ms Dalton provided her preliminary assessment report, containing the recommendation that GD’s complaints now be dealt with by means of a ‘formal’ Code of Conduct investigation. This recommendation was subsequently endorsed by Ms Amy Hand, the Director of Workplace Integrity.
On 17 June 2022 the Delegate directed that the NDIA response to GD’s complaints be conducted by way of a Code of Conduct investigation.[55]
[55]Attachment B to the Statement of Ms Emily Dalton (now Exhibit [5]).
On 29 June 2022 Ms Dalton was appointed[56] as the designated investigator for the Code of Conduct investigation.
[56]Attachment C to Exhibit [5].
On 1 August 2022 Ms Dalton wrote to Mr Sanchez advising him of the fact of her appointment as the investigator for GD’s complaints, and enquiring whether Mr Sanchez wished to participate in an interview in relation to the allegations that had been raised by GD.[57]
[57]Exhibit [5], Attachment C.
On 8 August 2022 Mr Sanchez replied to Ms Dalton advising that he did not wish to participate in an interview, preferring instead to be able to respond, in writing. Ms Dalton acceded to that request, and on 11 August 2022 Mr Sanchez was provided with a set of written questions.[58] Subsequently, Mr Sanchez provided his written answers to those questions, on 29 August 2022.[59]
[58]Exhibit [5], Attachment E.
[59]Exhibit [5], Attachment F.
On 13 September 2022,[60] Ms Dalton wrote to Mr Sanchez again, now asking two more questions. Mr Sanchez responded to these on 16 September 2022.[61]
[60] Exhibit [5], Attachment G.
[61]Exhibit [5], Attachment G
On 11 October 2022 Ms Dalton provided Mr Sanchez with a draft version of her proposed report to the decision-maker, for his further comment.[62] Mr Sanchez then provided an extensive response to the draft report, on 31 October 2022.[63]
[62]Exhibit [5], Attachment H.
[63]Exhibit [5], Attachment I.
In her evidence before the Tribunal, and particularly whilst under cross-examination by Mr Sanchez, Ms Dalton rejected any suggestion of bias against Mr Sanchez; or of there being any aspect of procedural unfairness, pre-judgement, or of there being any kind of vendetta against Mr Sanchez by the NDIA.
Similarly, Ms Dalton rejected the suggestion that the matter of GD’s complaint could have been more appropriately dealt with ‘informally at the local level’ by means of some form of ‘facilitated discussion’ between Mr Sanchez and the Complainant, GD.
Medical Evidence:
Dr Brendan Smith:
As indicated in earlier passages of these reasons, Dr Brendan Smith (Psychiatrist) examined and assessed Mr Sanchez on 4 January 2023.
In his report dated 10 January 2023, Dr Smith diagnosed Mr Sanchez as suffering from an adjustment disorder with mixed anxiety and depressed mood. As to the factors that had caused this condition, Dr Smith expressed the following:
Mr Sanchez presents as a 39-year-old gentleman who denies a past history of psychiatric illness prior to the events of 2 June 2022. Mr Sanchez describes symptomotology consistent with an adjustment disorder with anxiety and depressed mood from this point on of varying intensity. As the process of investigation continued and went on, Mr Sanchez described increasing levels of stress and strain related to drafting his responses and statements. His perception of unfair treatment as part of this process appeared to grow exponentially as this process continued”.
…/
“Mr Sanchez was first impaired by the psychological condition mentioned on 2 June 2022. The progress of this condition has been one of gradual worsening, with exacerbations related to incidents within the investigation process”.
Dr Smith’s diagnosis is confirmed in his supplementary report dated 6 June 2024.
Applicant’s Medical Records:
Mr Sanchez’s GP medical records were also obtained under summons. These became Exhibit 2 in the proceedings before the Tribunal.
Exhibit 2 reveals that between 14 July 2022 and 14 October 2022, Mr Sanchez had sought medical treatment for a variety of minor ailments, yet no record was made by his doctor within that timeframe of his having complained about any mental health symptomology.
The first clinical note of any complaints being made by Mr Sanchez to his doctor that were referable to a mental health condition were not made by Dr Nobari until 10 November 2022. The Tribunal notes this to be the same day as the expiry of Mr Sanchez’s employment contract with the NDIA, and as being on the same day as Mr Sanchez had been advised that his employment term would be ceasing, without further extension.
Although the medical certificate completed by Dr Nobari on 27 January 2023 indicates that Dr Nobari had been informed by Mr Sanchez that he had been suffering from mental health symptoms ‘commencing from 2 June 2022’, this is not a matter that is corroborated by any clinical records made by Dr Nobari at any time prior to 10 November 2022.
Applicant’s Case before the Tribunal:
Mr Sanchez contends that he was caused to suffer a psychological injury by ‘administrative action’ taken by his employer in circumstances in which that injury arose “directly from management actions that were not only unreasonable but also inconsistent with the standards of procedural fairness outlined in the Handling Misconduct Guide”.
More specifically as regards the claimed inconsistencies with the standards of procedural fairness outlined in the Handling Misconduct Guide, Mr Sanchez contends:
- there were flaws in the investigation;[64]
- the Investigator (Ms Dalton) had made a series of unreasonable determinations, thus demonstrating bias/prejudgement.
- that it was unreasonable, and contrary to policy, for these allegations to be dealt with by way of a formal Code of Conduct investigation, when these matters could (and should) have been dealt with ‘informally’.
- The investigation was “fundamentally flawed due to leading, speculative, and fishing questions”, thus demonstrating a lack of neutrality.[65]
- Regarding witness statements in particular, the investigation was flawed on account of:
- Reliance on hearsay and irrelevant matters;
- Bias in the handling of interview statements;
- Unreasonable weight having been attached to character statements; and
- A failure by the investigator to attempt to corroborate Mr Sanchez’s version of events.
[64]T31, pp. 238-249.
[65]T3, pp. 240-243.
The Respondent’s case:
Comcare agrees that Mr Sanchez has sustained an injury in the nature of an adjustment disorder in response to the workplace investigation, yet contends that the investigation was an obvious instance of disciplinary action within s.5A(2)(d) of the SRC Act.
Comcare further contends[66] that, although Mr Sanchez now claims that the decision to proceed by way of a formal workplace investigation was unreasonable (and that the ensuing investigation was also performed unreasonably), all of Mr Sanchez’s claims of bias, procedural irregularity and/or unfairness in the conduct of the workplace investigation – as well as the claimed initial error in determining to proceed by way of a formal workplace investigation in lieu of an informal resolution – are claims that do not withstand proper scrutiny. To this end, Comcare submits that each aspect of the workplace investigation was demonstrably regular, and therefore reasonable. In these circumstances Comcare contends that any injury condition suffered by Mr Sanchez becomes one that is excluded from eligibility for compensation under s.14 of the SRC Act, because of s.5A(1) of the SRC Act.
[66]T3/21
Legislative Provisions:
Section 14(1) of the SRC Act provides:
Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self - inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self - inflicted, unless the injury results in death, or serious and permanent impairment.
‘Injury’ is defined in s.5A(1) of the SRC Act, as follows:
Section 5A
(1)In this Act:
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee's performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c)a reasonable suspension action in respect of the employee's employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
‘Disease’ is defined in s.5B(1) of the SRC Act to mean:
(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.
‘Ailment’ is defined in s.4(1) of the SRC Act as:
‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
Subsection 5B(2) of the SRC Act provide that when 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 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.
Subsection 5B(3) of the SRC Act then confirms that ‘significant degree’ means a degree that is ‘substantially more than material’.
Consideration
Does Mr Sanchez suffer from an ‘ailment’?
On 10 November 2022 Dr Nobari had provided a workers’ compensation ‘work capacity’ certificate specifying Mr Sanchez as suffering from ‘adjustment disorder with depressed mood’.[67] Dr Nobari recorded the date of injury as having been advised to him by Mr Sanchez as 2 June 2022.
[67]T3/21.
On 14 November 2022, Dr Nobari provided another work capacity certificate which provided a diagnosis of mixed depression/anxiety.[68] This time, Dr Nobari recorded the date of injury as being 11 August 2022,[69] and said that Mr Sanchez was first seen at the medical practice for this injury on 10 November 2022.
[68]T4/22.
[69]The Tribunal notes 11 August 2022 to have been the date on which Ms Dalton had e-mailed Mr Sanchez providing the distilled allegations made against him by GD, as well as the investigator’s questions (Attachment E to Exhibit [5]).
On 4 January 2023, Mr Sanchez told the psychiatrist Dr Smith that he was suffering from mental health symptoms that had first commenced on 2 June 2022, when Mr Sanchez had first been informed of allegations made against him by a female co-worker.
Dr Smith diagnosed Mr Sanchez as suffering from adjustment disorder with anxiety and depressed mood and considered that employment was the ‘100% cause’ for this condition, ‘from 2 June 2022’. In his report dated 10 January 2023 Dr Smith described this condition as one of ‘gradual worsening, with exacerbations related to incidents within the investigation process’.
Although again noting that nothing had been said by Mr Sanchez to his general practitioner, Dr Nobari, regarding mental health symptoms prior to 10 November 2022 (the same day as Mr Sanchez was aware that his employment had ended), the Tribunal now accepts the opinion and diagnosis expressed by Dr Smith, and considers this diagnosis meets the definitional requirements to qualify as an ‘ailment’ under s.4(1) of the SRC Act – and in turn as an ‘injury’ – for purposes of s.14.
The Tribunal therefore proceeds on the basis of its acceptance of the opinion provided by Dr Smith, and determines that Mr Sanchez has sustained an adjustment disorder with anxiety and depressed mood which had ‘commenced’ on 2 June 2022, yet which continued to be contributed towards ‘over a period of time’ by events up to and including 10 November 2022.
Was the ailment contributed to, in ‘a significant degree’ by Mr Sanchez’s employment?
Dr Smith has further opined that Mr Sanchez’s condition was fully caused by the workplace investigation of allegations made against Mr Sanchez.
As indicated previously, the Tribunal accepts the medical opinion expressed by Dr Smith. On that basis, the Tribunal finds that the occurrence of Mr Sanchez’s injury condition was “significantly” contributed towards by his employment.
Is the Reasonable Administrative Action exception in s.5A(1) applicable?
Ultimately, should any aspect of ‘reasonable administrative action taken in a reasonable manner’ in relation to Mr Sanchez’s employment be found to have been an operative cause for the injury now claimed by Mr Sanchez, the injury becomes completely ineligible for compensation, by reason of the exception contained in s.5A(1) of the SRC Act. This is so even if there are a ‘constellation’ of significantly causal factors, and other factors within the constellation are not able to be categorised as ‘reasonable administrative action taken in a reasonable manner’.
In Comcare v Martin, the High Court (French CJ, Bell, Gageler, Keane and Nettle JJ) unanimously observed:
“[44] 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 an 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 the description of reasonable administrative action.
[45] 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 relate 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.
[46] That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to “ensure that the wide range of legitimate human resource actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation” and as including, in particular, to prevent claims “being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of” such action. The taking of administrative action in respect of an employee’s employment was in that way sought to be insulated from the need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee’s reaction.
[47] Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s. 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s.5A(1) in its application to a disease within s.5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s.5B(1), if the administrative action had not been taken.”[70]
[70] Comcare v Martin (2016) 258 CLR 467, [44]-[47].
Comcare submits that Mr Sanchez is excluded from eligibility for compensation because of s.5A(1) of the SRC Act.
To this end, Comcare submits[71]:
(a)the NDIA was obliged to investigate the allegations made by the complainant against Mr Sanchez. This was required by the ‘Procedures for determining breaches of the Code of Conduct and for determining sanction’, as promulgated by the Head of the NDIA in response to s.15(3) of the Public Service Act 1999 (‘the Procedures document’). Relevantly, the Procedures document required that regard be had for any guidance contained in an APS Commission publication entitled: Handling Misconduct: A Human Resource Manager’s Guide (ie: ‘the ‘Handling Misconduct Guide’).
(b)The interests of procedural fairness meant that a point would always arrive at which the NDIA was required to inform Mr Sanchez of the allegations making up the substance of the complaints that had been made against him by GD. This was because section 7.2 of the Procedures document compelled a process consistent with the ‘principles of procedural fairness’. Similarly, section 7.3 of the Procedures specifies that a determination could not be made in relation to a suspected breach of the Code of Conduct unless the person had first been informed of the details of the suspected breach; the sanction that may be imposed if the breach were established; and had been given a reasonable opportunity to make a written or oral statement, or to provide further information in relation to the suspected breach. Comcare submits that these requirements were met by the NDIA on 11 August 2022, when Ms Emily Dalton had e-mailed Mr Sanchez, thus providing the specific allegations and the questions prepared by Ms Dalton.
(c)The administrative action taken on 2 June 2022 when Mr Sanchez was first advised of the fact of a complaint having been made about him was an instance of ‘reasonable counselling action’ and/or ‘anything reasonable done in connection with [disciplinary action]’ for purposes of s.5A(2) of the SRC Act; and
(d)It was objectively appropriate for Mr Sanchez’s managers to have held a preliminary meeting with Mr Sanchez in order to obtain his initial views; to better understand the nature and context of the alleged behaviour; and so as to inform an appropriate NDIA response to the allegations. This approach is consistent with the process described in Chapter 4 of the Handling Misconduct Guide.
[71] Respondent’s Statement of Facts Issues and Contentions, paragraph [80].
Ultimately, the Tribunal rejects the contention that it was never reasonable for the NDIA to proceed by way of formal investigation of the allegations raised by GD against Mr Sanchez, in circumstances in which these ought instead have been addressed by way of some form of ‘informal local resolution’.
In making her recommendation[72] that the matter be investigated formally, Ms Dalton had identified that the allegations prima facie amounted to a sustained pattern of inappropriate behaviour in the form of unwelcome conduct, of a sexual nature. This had seemingly impacted on GD to such an extent that an ambulance had to be called: thus giving rise to employer obligations under the Work Health and Safety Act 2011 (Cth) in addition to any concerns that might arise regarding potential breaches of the APS Code of Conduct.
[72]Attachment ‘A’ to Exhibit [5]. See page 9 of Attachment A.
In part, Ms Dalton had recommended:
‘I have turned my mind to the utility of further action and why I consider a formal investigation appropriate in all of the circumstances. Whilst no formal warnings or directions have been provided, I am satisfied that Mr Sanchez has been adequately warned by his manager and by [GD] herself regarding the impact of his behaviour and it has not resulted in change. In my view, when examining the nature and extent of the conduct as alleged, and considering this in the context of the impact on the witness, I am of the opinion the allegations before me meet the definitions of sexual harassment, and possibly of bullying, and there is sufficient evidence to warrant further, formal follow-up. Therefore, I am of the opinion the matter should not be dealt with informally and that a formal investigation into the allegations be undertaken’.[73]
[73]Attachment A to Exhibit [5], at p.9
The Tribunal determines that the basis for the recommendation to proceed by way of formal investigation in lieu of ‘informal resolution’ is patently reasonable.
Mr Sanchez complains that he had been blindsided by the matters drawn to his attention by Ms Ramirez at their initial meeting on 2 June 2022; and that he had been felt pressured to provide his responses to the allegations immediately and that Ms Ramirez had also failed to inform him how any information provided by him at that meeting might be used by the NDIA subsequently during any formal investigation.
The Tribunal has considered the available evidence regarding what transpired during the 2 June 2022 meeting. The Tribunal is satisfied that the NDIA was entitled to conduct a preliminary meeting with Mr Sanchez to better inform decision making regarding the way these allegations should be dealt with. Although the Tribunal accepts that Mr Sanchez was both surprised and upset to be informed of the allegations on 2 June 2022, those impacts on Mr Sanchez does not mean that either the convening of the meeting - or the way it was conducted - thereby become ipso facto ‘unreasonable’. The Tribunal has considered all of Mr Sanchez’s complaints about that meeting and determines that the meeting was a reasonable aspect of the NDIA response to the complaints made against Mr Sanchez by GD. Other than Mr Sanchez now claiming to have felt ‘pressured’ to respond to the allegations immediately, there is no evidence to support any pressure having been applied. Mr Sanchez was also assured subsequently in an e-mail that this meeting was only intended as a preliminary discussion, and Mr Sanchez was given full particulars of the allegations and a proper opportunity to respond to those during later stages of the investigation. The Tribunal is satisfied that there is no evidence of Mr Sanchez having been compelled to say anything and the further complaint that Mr Sanchez was not advised how information revealed by him on 2 June 2022 might be used subsequently does not of itself make the meeting on 2 June 2022 one that was unreasonably conducted.
The Tribunal has traced through each of the steps taken in the NDIA formal investigation conducted by Ms Dalton as the appointed investigator. In the Tribunal’s assessment, Ms Dalton has sufficiently transformed the complaints made by GD into adequate particulars for delivery to Mr Sanchez.[74]
[74]T63, pp 599-607.
In the Tribunal’s further assessment, Mr Sanchez has been afforded a proper (and thus reasonable) opportunity to respond to the allegations: here noting that Mr Sanchez was permitted to respond to the allegations in writing, and was also afforded several time extensions within which to deliver those responses. Mr Sanchez was also invited[75] to submit the names of prospective witnesses, and each of these persons was interviewed by Ms Dalton as part of her investigation.[76] The Tribunal is satisfied that Ms Dalton has assessed the available evidence in an objectively reasonable manner. Ms Dalton made provisional findings,[77] and the provisional findings were also put to Mr Sanchez, inviting his further comment. Mr Sanchez took up that extra opportunity, and provided further lengthy submissions.[78]
[75]T67, p.34
[76]T26, pp. 156-165.
[77]T26, pp. 172-182.
[78]T74, pp.718-791.
The Tribunal considers that at each stage of the investigative process Ms Dalton has appropriately considered and given weight to all of Mr Sanchez’s responses. Mr Sanchez’s claims of bias and prejudgement are really in the nature of ‘throwaway claims’ and do not withstand proper scrutiny. So too are his claims that the complainant GD was being ‘deliberately untruthful’ by inventing false claims of sexual harassment and bullying’ and of these only being perpetuated by the investigation. Irrespective of their provenance the claims needed to be investigated.
In the Tribunal’s view, GD’s allegations - having been reported against the backdrop of her having suffered a panic attack of such seriousness as to necessitate the calling of an ambulance - really left NDIA management with no reasonable alternative other than to embark down the path of a formal workplace investigation. The Tribunal has seen no acceptable evidence to support the contention that the ensuing investigation was marred by either bias, procedural unfairness, or investigative insufficiency. In the Tribunal’s view, the workplace investigation was both reasonably warranted, and reasonably conducted.
The Tribunal is further satisfied that the decision by the NDIA to terminate the investigation on 10 November 2022 without it delivering a final report was also reasonable in the circumstance of Mr Sanchez’s fixed term employment having come to an end on 10 November 2022.
Ultimately therefore, the Tribunal concludes that Mr Sanchez’s condition of adjustment disorder with mixed anxiety and depressed mood is one that is excluded from eligibility for compensation payable pursuant to s.14 of the SRC Act, because of s.5A(1) of the SRC Act, as that condition has been caused by reasonable administrative action taken in a reasonable manner in relation to aspects of Mr Sanchez’s employment.
Disposition
The Tribunal affirms the decision under review.
Date(s) of hearing: 6 & 7 November 2024. Date final submissions received: 25 November 2024. Applicant: Self-represented. Counsel for the Respondent: Mr C. J. Clark, of counsel. Solicitors for the Respondent: Ms Gillian Gehrke,
Moray & Agnew Lawyers, Brisbane.
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