Stewart and Comcare (Compensation)

[2018] AATA 3685

Stewart and Comcare (Compensation) [2018] AATA 3685 (2 October 2018)

Division:GENERAL DIVISION

File Number(s):      2016/3880

Re:Paul Stewart

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:2 October 2018

Place:Canberra

The reviewable decision dated 15 June 2016 denying liability to compensate the Applicant in respect of adjustment reaction with anxious mood is set aside.

In substitution, the Respondent is liable to compensate the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury being adjustment disorder with anxious mood suffered by him on 15 January 2016.

........................................................................
Senior Member Linda Kirk

Catchwords

COMPENSATION – whether the Applicant suffers an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in s 4 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) – whether this was contributed to, to a significant degree, by his employment with the Commonwealth, such that he has a ‘disease’ under s 5B of the SRC Act – whether the Applicant’s ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a reasonable manner with respect to the Applicant’s employment – whether meeting on 15 January 2016 was ‘administrative action’ ‘in respect of the Applicant’s employment’ – adjustment disorder with anxious mood – reviewable decision set aside.

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14

Cases

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Comcare v Drinkwater [2018] FCAFC 62

Comcare v Martinez (No 2) [2013] FCA 439

Comcare v Martin [2016] HCA 43

Drenth v Comcare (2012) 128 ALD 1

Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056

Lim v Comcare [2017] FCAFC 64

Long v Comcare [2016] FCA 737

Rutledge and Comcare [2011] AATA 865

Stieglitz v Comcare [2010] AATA 263

Wiegand v Comcare Australia [2002] FCA 146

REASONS FOR DECISION

Senior Member Linda Kirk

2 October 2018

INTRODUCTION AND BACKGROUND

1. Mr Paul Stewart, (‘the Applicant’), has been employed by the National Library of Australia (NLA) in his current position, Director of Human Resources (Executive Level 2), since July 2010. At all material times, the Applicant’s supervisor was Mr Gerry Linehan, NLA Assistant Director-General, Corporate Services.

2. By application dated 19 January 2016[1] the Applicant lodged a claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of a psychological injury he claimed he suffered as a result of a meeting between him and Mr Linehan on 15 January 2016.

   [1] T Documents, T4

3. In a determination dated 21 March 2016[2] the Respondent denied liability under s 14 of the SRC Act in respect of adjustment reaction with anxious mood on the basis that the Applicant had not suffered a psychological injury which was significantly contributed to by his employment, and that the circumstances of his claim fell within the ‘reasonable administrative action’ exclusion contained in s 5A(1) of the SRC Act.

   [2] T Documents, T24

4. By letter dated 20 April 2016 the Applicant requested a reconsideration of the determination dated 21 March 2016.[3] By notice dated 15 June 2016 a delegate of the Respondent affirmed the determination[4] (‘Reviewable Decision’).

   [3]  T Documents, T26

   [4]  T Documents, T39

5. On 22 July 2016 the Applicant applied for a review of the Reviewable Decision by this Tribunal.[5]

   [5]  T Documents, T1, Application for Review of Decision dated 22 July 2016.

6. The matter was heard in Canberra on 3-5 July 2018. The Applicant attended the hearing in person and was represented by counsel. The Applicant and Ms Jenny Henderson, Dupont and Associates gave oral evidence at the hearing.

   LEGISLATIVE REQUIREMENTS

7. The right to compensation for an employee under the SRC Act is conferred by section 14(1) which provides that 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.

   (Emphasis added)

8. “Injury” is defined in s 5A of the SRC Act:

   “(1)      …

   (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.”

   (Emphasis added)

9. A “disease” is defined in s 5B of the SRC Act to mean, so far as this case is concerned:

   “(1)      …

   (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.”

   (Emphasis added)

10. An “ailment” is defined in s 4 of the Act to mean:

    “… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

    (Emphasis added)

    ISSUES FOR DETERMINATION

11. The issue for determination is whether the Applicant is entitled to compensation for an ‘injury’ under s 14 of the SRC Act and specifically:

    a)Whether the Applicant suffers an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in s 4 of the SRC Act;

    b)Whether this was contributed to, to a significant degree, by his employment with the NLA, such that he has a ‘disease’ under s 5B(1) of the SRC Act, which may therefore meet the definition of ‘injury’ in s 5A(1)(a), and;

    c)Whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a reasonable manner with respect to the Applicant’s employment, such that it is excluded from the definition of ‘injury’ in s 5A(1), and;

    d)Whether the Respondent is liable to pay compensation for an injury under s 14 of the SRC Act.

12. At the commencement of the hearing the parties informed the Tribunal that they had reached agreement in relation to the factors in sub-paragraphs a) and b) above namely that the Applicant suffers an ‘ailment’ as defined in s 4 of the SRC Act, that was contributed to, to a significant degree, by his employment with the NLA, such that he has a ‘disease’ under s 5B(1) of the SRC Act, which meets the definition of ‘injury’ in s 5A(1)(a).

13. It is further agreed that the onset of the Applicant’s ‘disease’ followed the meeting held between the Applicant and his supervisor Mr Linehan on 15 January 2016. The parties disagree as to the characterisation of this meeting, specifically whether it was ‘reasonable administrative action taken in a reasonable manner’ in respect of the Applicant’s employment, and therefore whether the exclusionary provision in s 5A(1) of the Act applies.[6] If the exclusionary provision applies, the Applicant’s ailment would not be an ‘injury’[7] for the purposes of the SRC Act, and he is not entitled to compensation under s 14 of the SRC Act.

    [6] Respondent’s Statement of Issues, Facts and Contentions dated 11 July 2017; Applicant’s Statement of Facts Issues and Contentions dated 26 June 2017.

    [7] Section 5B, SRC Act.

14. A consideration of whether the Applicant is entitled to compensation under s 14 of the SRC Act therefore involves determining whether the ‘disease’ he suffered was as a result of ‘reasonable administrative action taken in a reasonable manner in respect of [his] employment’.

    EVIDENCE BEFORE THE TRIBUNAL

    Events during Christmas/New Year closure

15. The NLA was closed for the Christmas/New Year period from 24 December 2015 to 4 January 2016.

16. The Applicant travelled to Sydney on two occasions during this period to visit his elderly mother. She was in a very frail and distressed state and the Applicant brought her back to Canberra where she stayed with him at his home while he attempted to make arrangements for her to be medically assessed and treated. The Christmas/New Year break meant that these services could not be arranged until the week beginning 4 January 2016. The Applicant was at the time the sole carer of his mother who was very unwell and bed-bound.

17. On the evening of Sunday 3 January 2016 at 7:17pm the Applicant sent his supervisor, Mr Linehan, an email headed ‘Urgent Absence’[8] to notify him of his necessary absence from work the following day:

    Dear Gerry,

    Happy new year to you. I hope you had a restful break.

    I am afraid I have some bad news Gerry. Over the Christmas break, I had to travel to Sydney to bring back to Canberra my very frail 85 year old mother who can no longer care for herself …

    Long story short, she is too frail and ill to stay at home by herself, and I will need to stay at home with her for the next week. After that, I would expect to be able to return to work part-time – perhaps work in the morning or afternoon and care for her the other half day. I would expect this would be for another fortnight or 3 weeks till she can return to Sydney, we can get a carer in or she will go into care here or in Sydney. I will, of course, cancel the leave we discussed for 7 and 10 January as I will need to be here.

    Gerry, I realise this is unwelcome news and I very much regret its impact especially with the EL1s being off. However, I have no alternative and cannot leave my mum at home by herself lest she has a fall while alone.

    Regards,

    Paul

    [8] T Documents, T13.3 page 41

18. The following morning, Monday 4 January 2016 at 8:40am, Mr Linehan sent the Applicant the following email[9]:

    Thanks Paul

    Sorry to hear about your mum.

    Can you give me a call this morning so I can understand what you have on here at work and what arrangements you may have in train for it.

    Regards,

    Gerry Linehan

    [9] T Documents, T13.3 page 42

19. The Applicant phoned Mr Linehan at 10.04am[10] that morning and they briefly discussed his absence from work to allow him to care for his mother. During the short six minute call, which the Applicant described as an ‘uncomfortable conversation’, the Applicant became very distressed and began to cry. This made Mr Linehan uncomfortable and he told the Applicant to call him back later when he was better.

    [10] Supplementary T Documents, ST14.9 page 518 Telstra phone account

20. The Applicant remained in contact with his staff during his absence that week, including one of his EL1s, Ms Helen Franz, and he cancelled the leave he had scheduled from 7 to 10 January 2016. It was a difficult period for the Applicant as he was the sole carer for his mother and he was actively arranging for her ACAT assessment. His sister had objected to him taking their mother to Canberra and accused him of abduction which caused him further distress. He was not sleeping and losing weight. He asked his mother’s treating doctor (Dr Masters) for advice. She wrote a medical certificate for him to cover the period for which he would require carer’s leave.[11]

    [11] T Documents T13.3 page 46

21. On Friday 8 January at 4:15pm the Applicant attempted to make further contact with Mr Linehan by phone.[12] The call went to voicemail and the Applicant left a message advising him that he would need more time to care for his mother. On Sunday 10 January 2016 at 10:05pm the Applicant emailed Mr Linehan to confirm the telephone message:[13]

    Dear Gerry

    I rang for you Friday afternoon but you were out of your office.

    I regret very much to tell you that I think I’ll be off work for the next fortnight. Mum is still very frail and I am literally with her constantly while she’s awake. Her mid afternoon nap offers some opportunity to wash her clothes and so on.

    I have contacted ACT community services for an urgent ACAT assessment to get some in-home care and am very hopeful that can occur this week. All going well services should be available by end-Jan which will enable me to return to work.

    On the upside, mum has responded well to my care and is much less ill than she was, I think. Further scheduled medical treatment should help.

    Gerry, I’m very conscious about the effect of my absence on the EA negs; perhaps getting that James fellow on, as we discussed before Christmas, would enable things to tick over? I could also shepherd him by phone. I’ll leave you to consider.

    Speak soon.

    With best regards,

    Paul

    [12] Supplementary T Documents, ST14.9 page 519 Telstra phone account

    [13] T Documents, T13.3 page 44

22. On Monday 11 January at 10:52am the Applicant sent Mr Linehan an email attaching a photo of the medical certificate he had obtained from his doctor:[14]

    Hi Gerry,

    Here is a photo of my medical certificate. I will bring in the original when I can. It looks like I will need to ask for reduced hours until I can arrange more permanent care for my mum.

    Thanks again for your support! It has helped me cope with this mini-drama.

    Regards

    Paul

    [14] T Documents, T13.3 pages 45-46

23. On Monday 11 January and Tuesday 12 January he again telephoned Mr Linehan to keep him updated about his absence.[15] During one of these phone calls, Mr Linehan told the Applicant he would like him to come into work from leave to attend a ‘handover meeting’. This was confirmed in the following email from Mr Linehan to the Applicant sent at 12:37pm on Tuesday 12 January 2016:[16]

    Hi Paul,

    Thanks for this – I can image (sic) things are difficult for you. I do need some detailed advice on where things are at here at work so I can get them managed. I had asked Hung to make sure you called me back yesterday because HR and I don’t have a clear work picture and we need that handover. I did call back straight away after I missed your call last night and I left a message.

    Can we meet quickly including with Helen to get that handover and for me to understand what the likely scenario is regarding your absence and how I can best manage the situation. This afternoon (I understand unlikely now given alternate arrangements you may need to set in train) or Thursday or Friday afternoon are suitable from my end. I will have a support person with me so I can determine likely outcomes and we can collectively devise a management plan. I am happy to meet at your place.

    I will then be able to consider and agree on your leave proposals/requirements accordingly.

    Regards,

    Gerry Linehan

    (Emphasis added)

    [15] Supplementary T Documents, ST14.9 page 519 Telstra phone account

    [16] Supplementary T Documents, ST14.8 page 499

24. The Applicant phoned Mr Linehan at 1:42pm on 12 January 2016 to confirm that he would go into work to attend the proposed meeting on Friday 15 January at 2:30pm.

    Meeting on 15 January 2016

25. On 15 January 2016 the Applicant took his mother with him to the NLA as there was no one who could care for her at home in his absence. She sat outside his office while he attended the scheduled meeting. He was told by Ms Franz that Mr Linehan was waiting for him in his office with another person, a rehabilitation provider. He was surprised by this as he thought that the purpose of the meeting was to facilitate a ‘handover’ to Ms Franz. When he entered the room Mr Linehan introduced him to Ms Jenny Henderson and said she was there as a support person for the Applicant.

26. What transpired during the 30 minute meeting was described to the Tribunal by the Applicant and Ms Henderson. Ms Henderson told the Tribunal that from her point of view the meeting was to allow her to be introduced to the Applicant and for her to understand his requirements and what assistance she could provide. She’d been made aware by Mr Linehan that the Applicant had been off work for two weeks and a medical certificate had been provided. She assumed her presence and role at the meeting would have been explained in advance to the Applicant by Mr Linehan.

27. The Applicant said that before the meeting commenced he was asked by Mr Linehan whether he was comfortable with Ms Henderson attending the meeting. He agreed to her being there as he felt he could not object to her presence. He briefly described his mother’s circumstances and the arrangements he was making to organise her care arrangements. He explained to Mr Linehan and Ms Henderson that he had not slept properly for three weeks and had lost weight as a consequence of the pressure he’d been under since taking on a full-time caring role. Ms Henderson confirmed in her evidence that the Applicant looked exhausted and anxious and appeared to be struggling to recall information, but that he engaged positively with the process and interacted well.

28. The Applicant explained that he would initially need to take some leave and then return to work part-time or work from home until he was able to resume full-time work when his mother’s care arrangements were finalised in a few weeks. According to the Applicant, Mr Linehan was not satisfied with the Applicant’s proposal and said he needed his HR Director to be full-time, not part-time or working from home, and he required certainty as to how long the Applicant would be unable to meet his full-time responsibilities. In her evidence, Ms Henderson confirmed that Mr Linehan emphasised that the HR Director role was a full-time role and that it would be very difficult if not impossible to do on less than full-time hours and if the Applicant couldn’t work full time he’d have to take leave. The Applicant could not provide Mr Linehan with the certainty he required as he was still in the process of putting into place his mother’s care arrangements. He told Mr Linehan that if the only acceptable option was full-time work then he would take paid carer’s leave for the period of his absence from work. Ms Henderson told the Tribunal that both parties were expressing frustration and emotions were raised.

29. The meeting then turned to the email sent by the Applicant to Mr Linehan in the evening on Sunday 10 January 2016 which Mr Linehan described as ‘disrespectful’. The Applicant was shocked at this accusation, particularly as the implication was that he had breached the APS Code of Conduct. Mr Linehan did not explain what he meant by the accusation and did not show him the email although he had it in his hand. The Applicant began to feel very anxious and panicky about whether disciplinary consequences might follow Mr Linehan’s accusation. He explained why he sent the email, that is, because he was unable to speak to Mr Linehan when he phoned him on the previous Friday afternoon. In her evidence, Ms Henderson confirmed that the email was described by Mr Linehan as ‘disrespectful’ and said it was her understanding that Mr Linehan objected not to the content of the email but to the fact the Applicant sent an email rather than phoning to advise him that he was unable to attend work the following day. Both parties raised their voices and were speaking over each other about whether the email should have been sent. Mr Linehan was fixated on the communication method which in her view displayed a ‘lack of judgement’.

30. The Applicant did not know what else he could say or do as Mr Linehan was not articulating what he required from him in relation to his work and carer responsibilities. It became apparent that no agreement could be reached and Ms Henderson suggested that they draw the discussion to a close and she would speak to the Applicant the following week. The meeting concluded shortly thereafter. According to the Applicant, he was left in a state of confusion as he did not understand what had been the purpose of the meeting as there had been no discussion of the ‘handover’ for which the meeting had been arranged.

    Events following the meeting

1. After the meeting the Applicant spoke to Ms Franz and asked her what she needed by way of ‘handover’ as she would be Acting Director, HR during his absence. He then left the building with his mother and returned home. At 3:23 pm he submitted an application for Personal/Carers Leave Without Cert Paid for the period 18-29 January 2016[17] via the online Aurion system and included the following notation:

   Hi Gerry

   I understand your reluctance for part-time arrangements and will see what I can manage for a return to full-time duty asap.

   Paul

   [17] T Documents, T13.3, page 49

2. After the meeting the Applicant was deeply distressed and his hands were shaking and his head was throbbing. Later that afternoon he phoned Ms Henderson to discuss the meeting with her. They had a 15 minute discussion and he took notes of their phone call.[18] She explained that Mr Linehan had asked her to attend because he knew it would be a difficult meeting. She assumed that Mr Linehan would have advised the Applicant of her attendance and role at the meeting.

   [18] Supplementary T Documents, ST14.2 page 537

3. The Applicant was unable to sleep that night and at 2am on 16 January 2016 he woke up and started to write a document to capture what had happened at the meeting.[19] On Sunday 17 January 2016 he sent an email to the Director-General of the NLA, Ms Anne-Marie Schwirtlich, outlining his concerns about Mr Linehan’s behaviour[20]:

   …

   Anne-Marie, as Gerry’s supervisor, I must advise you that I am greatly disturbed and affected by this incident. I have been under very severe personal pressure as a result of suddenly assuming mum’s care and have communicated this to Gerry. As I stated to Gerry on Friday, I found his approach at the meeting unhelpful in the extreme. I attended the Library in good faith at my supervisor’s request to attend a meeting about work content; in the contrary, I consider that Gerry has acted selfishly and in poor faith.

   In my professional opinion, Gerry’s approach to this issue was ill considered, poorly executed and damaging. Friday’s event – not the first of this nature I have experienced with Gerry – has left me feeling sickened and distressed. It has exacerbated my existing level of anguish. As Disability Champion, I think Gerry’s behaviour at Friday’s meeting was most untoward; Gerry should not take out his personal or professional frustrations on the victims of circumstance.

   I genuinely love working at the Library and plan to do so for some time, but for the immediate future must look after my mother’s health and my own health issues. I am seeing my GP on Monday afternoon and will keep you posted, as I will Gerry.

   [19] T Documents, T3 page 4-5

   [20]  Section 71 Documents, S11 page 27

4. On 18 January 2016 the Applicant saw his General Practitioner, Dr Ranjana Curtotti, who provided him with a medical certificate and prescribed him medication.

5. On 18 January 2016 Mr Linehan approved the Applicant’s applications for leave for the periods 4 – 15 January and 18 - 29 January 2016.[21]

   [21] T Documents, T13.3 page 50

6. On 19 January 2016 the Applicant submitted an application for workers compensation.[22]

   DID THE APPLICANT SUFFER A DISEASE?

   [22] T Documents, T4

   Did the Applicant suffer an ailment?

7. The Applicant was assessed by his General Practitioner, Dr Rana Curtotti on 18 January 2016 who declared him unfit for work and provided him with a medical certificate for the period 18 January to 5 February 2016.[23] He saw Dr Curtotti on three subsequent occasions on 5 February, 29 February and 21 March 2016 and she declared him unfit for work and provided him with a medical certificate for the periods 5 to 29 February, 29 February to 25 March, and 21 March to 22 April 2016.[24]

   [23] T Documents, T40.

   [24] T Documents, T40

8. The Applicant was assessed by Dr Catherine Oelrichs on 16 March 2016. She provided the following opinion:

   Mr Stewart is likely to have suffered from clinically identifiable symptoms of anxiety and stress following his reported experiences on 15 January 2016.  This was in combination with his pre-existing concerns related to the care and support of his mother’s illness and support in his home.[25]

   …

   The condition is anxiety and sleep disturbance and the condition is fitting best with an adjustment disorder with anxious mood under DSM-IV-TR.[26]

   [25] T Documents, T21, page 89, para 3.

   [26] T Documents, T21, page 88, para 2(a)

9. On the basis of Dr Oelrich’s assessment, the Tribunal finds that the Applicant suffered from a mental ailment, an ailment, as defined by section 4 of the SRC Act.

   Contributed to, to a significant degree

10. On the basis of the medical evidence referred to above, the Tribunal is satisfied that the Applicant’s ailment was contributed to, to a significant degree, by his employment at the NLA. That is, the Applicant suffered a disease as defined in section 5B of the SRC Act. This is not disputed by the Respondent.

11. The issue is whether the Applicant suffered this disease as a result of ‘reasonable administrative action taken in a reasonable manner’ in respect of his employment.

    WAS THE DISEASE SUFFERED AS A RESULT OF REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER?

12. To determine whether the adjustment disorder with anxious mood suffered by the Applicant is excluded by section 5A it is necessary to determine the following:

    (i)Was the meeting ‘administrative action’ taken in respect of the Applicant’s employment?

    (ii)Was the administrative action ‘reasonable’?

    (iii)Was the action ‘taken in a reasonable manner’?

    (iv)Was the condition suffered by the Applicant ‘as a result of’ the administrative action?

    (i)       Was the meeting ‘administrative action’?

    What is ‘administrative action’?

13. The term ‘administrative action’ is not given any special meaning under the SRC Act, whereas the term ‘reasonable administrative action’ is explicated in section 5A(2), outlined below.

14. In Rutledge and Comcare [2011] AATA 865, Member Webb had regard to the common usage of the words ‘administrative action’:

    [21] … ‘administrative’ means ‘pertaining to or dealing with, the conduct or management of affairs; … ‘action’ means ‘something done or performed, a deed, an act.’ Thus, applying the common meaning of these words in the context of an employee’s employment, it can be seen that an ‘administrative action’ involves something that is done to effect the conduct or management of the employee’s employment.

    [22] When viewed through the frame of the legislation, however, it does not follow that any interaction between a supervisor or manager and a subordinate employee that occurs in the context of employment will meet this test to the extent that it may be considered to be an ‘administrative action’. [27]

    (Emphasis added)

    [27] [2011] AATA 865 at [21]-[22].

15. In the Full Federal Court decision of Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 (‘Reeve’), Rares and Tracey JJ held that ‘administrative action’ referred to in the exclusion part of s 5A(1):

    [57]… was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.

    [60]     The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.

    (Emphasis added)

    Rares and Tracey JJ, having considered the Explanatory Memorandum to the Bill said:

    [73]     Here, 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).

    [74]     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”.

    (Emphasis added)

    ‘Operational action’ is not ‘administrative action’

16. Administrative action is to be distinguished from other actions, such as operational actions. In Reeve, Gray J held, at [31], that ‘…an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as 'administrative’ action, but as operational action with respect to the employee's employment”.’

17. In Long v Comcare [2016] FCA 737 at [20] to [24], Tracey J noted:

    [20] A distinction between “administrative” action and “operational” decisions was recognised by the Full Court in Reeve.

    [21] Mr Reeve had developed a depressive illness while working as a manager of a Perth branch of the Commonwealth Bank. The circumstances which contributed to his condition included organisational and staff changes, the humiliation of a telephone conference with colleagues in which he was required to report poor branch results, an unsupportive visit from his manager and the anxiety of reporting poor customer satisfaction survey results. The Full Court held that the exclusion under s5A of the Act applied to specific action taken in respect of an individual’s employment, such as disciplinary action (“administrative action”), as opposed to action forming part of the everyday tasks and duties of that employment (“operational decisions”). Thus, the ordinary work routine, changes to routine and directions to perform work did not constitute “reasonable administrative action taken in respect of the employee’s employment”. The Full Court concluded that the events which contributed to Mr Reeve’s condition were part of his ordinary work duties as an employee and he was, therefore, not disentitled to compensation by operation of the qualification in s5A(1) of the Act.

    [22] The distinction between “administrative action” and “operational” decisions was explained by Gray J at [33] in the passage quoted by the Tribunal (see above at [15]).

    [23] At [60] (in another passage quoted by the Tribunal) Rares J and I drew a similar distinction.

    [24] Both judgments established that “administrative action”, within the meaning of s5A, must be employee-specific. It must entail more than the regulation of the normal incidences of a person’s employment. Such action may or may not involve the application or implementation of some particular policy. The “formality” or otherwise of a particular action on the part of the employer is not necessarily a determinative factor.

    (Emphasis added)

18. The Full Federal Court recently considered the construction and application of the exclusion contained in the definition of “injury” in s 5A of the SRC Act in
    Comcare v Drinkwater [2018] FCAFC 62 (‘Drinkwater’). The Full Court noted (at [51]) that in Reeve, it was found that the:

    “… exclusion did not apply to action forming part of the everyday tasks and duties of that employment, and, in consequence, ordinary routine work, and changes to routine and directions to perform work, were not “reasonable administrative action taken in respect of the employee’s employment”: see CBA v Reeve at [33], [60]. The Full Court held that the events that contributed to Mr Reeve’s condition were part of his ordinary work duties as an employee; the exclusion did not therefore apply; and he was not disentitled to compensation under the SRC Act: see CBA v Reeve at [34], [61], [64].”

19. The Full Court noted, at [67], that Reeve “…indicated that the boundary between administrative action and non-administrative action may on occasion be difficult to draw” and that “whether or not there is administrative action within the meaning of s 5A(1) of the SRC Act depends to a significant extent on the particular circumstances in which the action is taken.”

20. In Drinkwater, the Court found (see [68]-[70]) that the illness suffered did not develop in response to Mr Drinkwater performing his normal duties. In Drinkwater the relevant action was about transferring Mr Drinkwater to a different post or position from that which he then held in his employer’s employ, and that was held to be “administrative action”. The Court said, relying on Reeve that the case was not about Departmental directions as to how Mr Drinkwater was to do his job in his then position or about his duties in that job; and it did not, for this reason, involve operational action falling outside the exclusion.

21. The evidence before the Tribunal is that the purpose of the meeting on 15 January 2016 was to facilitate the ‘handover’ to Ms Franz who would be Acting Director, HR during the Applicant’s absence. Mr Linehan’s email to the Applicant dated 11 January 2016, quoted in full above in paragraph 23, stated:[28]

    Can we meet quickly including with Helen to get that handover and for me to understand what the likely scenario is regarding your absence and how I can best manage the situation.

    [28] Supplementary T Documents, ST14.8 page 499

22. The Tribunal finds that the purpose of the meeting was for Mr Linehan to obtain information from the Applicant about the nature and likely duration of his absence from work so he could determine how the Applicant’s absence would impact on the staffing requirements of the Library in the coming weeks. The leave arrangements of the Applicant and whether he would be able to work part-time or from home were part of these discussions but they were ancillary to the primary focus of the meeting which was Mr Linehan’s management of staff and resources during the Applicant’s absence.  Such ‘operational’ matters are not ‘administrative’ issues specific to the Applicant’s employment, and therefore the meeting cannot be said to satisfy the requirements of ‘administrative action’.

23. Even if the meeting is considered to be ‘administrative’ not ‘operational’ in the manner outlined above, there was no relevant ‘action’ taken at the meeting. The meeting concluded without any decision being made by Mr Linehan as to whether the Applicant would be permitted to work reduced hours, work part-time or from home, or take carer’s leave while he saw to his mother’s care arrangements. It was agreed that the Applicant and Ms Henderson would be in contact the following week to further discuss his needs and requirements. The Applicant submitted a leave request for Personal/Carers Leave Without Cert Paid after the meeting, and this was approved by Mr Linehan on 18 January 2016. Accordingly, as there was no decision or action taken at the meeting on 15 January 2016, it cannot be said to satisfy the requirements of ‘administrative action’.

24. Having decided that the action relied upon by the Respondent was not ‘administrative action taken … in respect of’ the Applicant’s employment, it is not necessary for the Tribunal to consider the further issues. However, for completeness the further issues, namely whether the administrative action was reasonable and undertaken in a reasonable manner, are considered below.

25. Assuming the meeting held on 15 January 2016 was, contrary to the Tribunal’s findings, ‘administrative action’ was it reasonable and was it undertaken in a reasonable manner?

    (ii)Was the administrative action reasonable?

26. Section 5A(2) provides that, for the purposes of section 5A(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.”

27. Section 5A(2) of the SRC Act is not an exhaustive list.[29]

    [29] The Full Federal Court in Drenth v Comcare (2012) 128 ALD 1, at [21] held that the 'action' referred to in s 5A(l) is not qualified by the non-exhaustive list of examples of 'reasonable administrative action' provided for in s 5A(2)

28. The Tribunal finds that the evidence demonstrates that the meeting on 15 January 2016 was not for the purpose of counselling or disciplining the Applicant in relation to his work performance or his compliance with leave procedures or for any other purpose provided for in s5B(2) of the SRC Act.

    (iii)Was the administrative action taken in a reasonable manner?

29. Whether or not an administrative action was undertaken reasonably is a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned.[30]

    [30] Stieglitz v Comcare [2010] AATA 263; Thompson and Comcare [2012] AATA 752, at [61]

30. In Drenth and Comcare [2011] AATA 582 Deputy President Jarvis and Professor Ben-Tovim made clear at [75] and [76]:

    To determine whether the actions were reasonable involves an objective judgment, taking into account all of the circumstances in which they occurred, and determining whether they were rational, lawful and not irrelevant or disproportionate to what was required; and the question of what was “reasonable” does not involve determining whether the action could have been done more reasonably or in a different way more acceptable to the decision-maker: see Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105 at [78]–[80], and the helpful analysis of Professor Robin Creyke, Senior Member, and Dr Peter Wilkins, Member, in Re Lynch and Comcare (2010) 114 ALD 394.

31. In Stieglitz v Comcare [2010] AATA 263, Senior Member Creyke and Member Miller said at [67]:

    Whatever administrative action is to be taken must be “reasonable”. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’, Dr Campbell summed up many facets of these principles in Re Georges and Telstra Corporation Ltd when he said:

    I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound [sic] of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.

1. The Federal Court in Comcare v Martinez (No 2) [2013] FCA 439 (‘Martinez’) at [83] agreed with the statement of Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42:

   Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.

2. The Full Court in Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42 at [63] said:[31]

   In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.

   (Emphasis added)

   [31] Cited with approval by Cowdroy J in National Australia Bank Limited v KRDV (2012) 204 FCR 436 at [51].

3. In Wiegand v Comcare Australia [2002] FCA 1464 von Doussa J said (at [31]):

   ... there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.

4. The Tribunal finds, based on the evidence before it, that had the meeting on 15 January 2016 been ‘administrative action’ that it was not undertaken reasonably. The Applicant was on leave and attended the NLA with his mother for whom he was caring for the purposes of a meeting to discuss what Mr Linehan described in his email as a ‘handover’. The Applicant was known by Mr Linehan to be in a distressed state as a result of him unexpectedly assuming the care of his mother, and it was obvious at the beginning of the meeting that he was tired, exhausted and anxious. The Applicant was further unsettled by the attendance of Ms Henderson at the meeting as Mr Linehan had not explained her role at the meeting in his email to the Applicant. There was no agenda provided prior to or at the meeting and it did not cover the matter for which it was arranged, namely a ‘handover’. Mr Linehan’s refusal to consider the flexible working arrangements proposed by the Applicant, and his fixation on the use of email as a method of communication including his declaration that it was ‘disrespectful’, and its implication that the Applicant had breached the APS Code of Conduct, caused the Applicant to grow increasingly anxious and frustrated. The conduct of the meeting by Mr Linehan was such that the Tribunal finds that it was not undertaken in a ‘reasonable manner’.

5. The Tribunal finds that if the meeting on 15 January 2016 was “reasonable administrative action”, it was not undertaken in a “reasonable manner” in respect of the Applicant’s employment. The exclusionary provision in section 5A(1) of the Act does not apply and the Applicant’s ailment is an “injury” for the purposes of the SRC Act.

   (iv)Was the condition suffered by the Applicant ‘as a result of’ the administrative action?

6. The High Court in Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29 held, at [45] (‘Martin’), 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.

   (Emphasis added)

7. The High Court in Martin then went on to say (at [47]) that:

   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 in s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.

8. Therefore, as outlined by the Full Federal Court in Lim v Comcare [2017] FCAFC 64 (‘Lim’) (at [41]), applying Martin, to satisfy the causal requirement in the exclusion in section 5A(1), the Tribunal has to be satisfied that the Applicant would not have suffered an ailment (or aggravation of an ailment) if the administrative action had not been taken.[32] The Tribunal must also consider whether the Applicant would have suffered the adjustment disorder with anxious mood if the administrative action had not been made.[33]

   [32] See also Hollis v Comcare [2017] FCA 558, at [5].

   [33]  Lim v Comcare [2017] FCAFC 64, at [42].

9. The Full Federal Court in Lim noted that (at [45]):

   …where both employment and non-employment factors are posited as contributing to an ailment or an aggravation of such an ailment (within the meaning of s 5B(1)), in order to determine whether s 5B applies, a finding would need to be made as to whether the ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. If there were an affirmative finding, then the further questions would arise as to whether or not there was reasonable administrative action taken in a reasonable manner; and, if so, whether or not the disease would have been suffered by the employee if that action had not been taken. If the Tribunal were so satisfied, then the exclusion to the definition of “injury” in s 5A(1) would apply.

10. On the basis of the evidence before it, particularly the medical evidence referred to in paragraphs 38 and 39 above, the Tribunal is satisfied that had the meeting not occurred, the Applicant would not have suffered the ailment he did.

    DECISION

11. The reviewable decision dated 15 June 2016 denying liability to compensate the Applicant in respect of adjustment reaction with anxious mood is set aside.

12. In substitution, the Respondent is liable to compensate the Applicant in accordance with s 14 of the SRC Act in respect of the injury being adjustment disorder with anxious mood suffered by him on 15 January 2016.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kirk

.....................................................................

Associate

Dated: 2 October 2018

Date(s) of hearing:	3-5 July 2018
Date final submissions received:	5 July 2018
Counsel for the Applicant:	Mr Karl Pattenden
Solicitors for the Applicant:	Bradley Allen Love Lawyers
Counsel for the Respondent:	Mr Michael Snell
Solicitors for the Respondent:	Lehmann Snell Lawyers