Terbizan and Comcare (Compensation)

[2018] AATA 3862

Terbizan and Comcare (Compensation) [2018] AATA 3862 (15 October 2018)

Division:GENERAL DIVISION

File Number(s):      2016/5353

Re:John Terbizan

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President P Britten-Jones
Member A Ward
Member M O'Loughlin

Date:15 October 2018  

Place:Adelaide

The decision under review is affirmed.

..............................[SGD]..........................................

Deputy President P Britten-Jones

CATCHWORDS

COMPENSATION – Adjustment disorder – Temporary role discontinued – Notification of discontinuance given by letter - Whether adjustment disorder suffered as a result of administrative action - Whether administrative action in respect of the employment of the applicant - Whether administrative action reasonable - Whether administrative action taken in a reasonable manner – Decision under review affirmed.

LEGISLATION

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

CASES

Comcare v Martin (2016) 258 CLR 467

Lim v Comcare [2017] FCAFC 64
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; [2012] FCAFC 21
Comcare v Drinkwater [2018] FCAFC 62
Drenth v Comcare [2012] FCAFC 86
Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42
Comcare v Martinez (No. 2) [2013] FCA 439

Lee v Comcare [2012] AATA 867

SECONDARY MATERIALS

Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006

REASONS FOR DECISION

Deputy President P Britten-Jones
Member A Ward
Member M O’Loughlin

15 October 2018

1. The applicant seeks review of a decision made by Comcare (the respondent) dated 27 July 2016, which denied compensation for a worker’s compensation claim for an “adjustment disorder with depressed and anxious mood” under the Safety, Rehabilitation and Compensation Act1988 (the Act).

2. Section 14 of the Act provides that the respondent is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee that results in death, incapacity for work or impairment. But the definition of “injury” in s 5A(1) of the Act excludes a condition that would otherwise satisfy the definition if the condition was a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. This case concerns that exclusion.

   FINDINGS OF FACT

3. From 1982 until 2013 the applicant was employed as an aviation firefighter with Airservices Australia (Airservices). Airservices is a government owned organisation providing rescue and firefighting services to the aviation industry, including at Adelaide airport.

4. In 2013 the applicant was approached by his Adelaide airport station manager, Geoff Skewes, to see if he would be interested in the role of fire alarm administrator. The role was described in an email dated 27 February 2013 as “a short term fix to assist Business Support manage a number of fire alarm monitoring issues”. The role included “[a]ssisting Business Support with the customer fire alarm monitoring application process”, “[a]ssist in the update of our fire alarm documentation”, “[f]ollow up with customers to resolve issues” and “[l]iaise between Business Support and Stations on troublesome customers”. The email said it would be ideal if there was a senior officer on long term sick leave and concluded:

   In the long term, I would like to create a position within Business Support for an operational secondment. That person would do the above plus I would give them exposure to our strategic planning, budget compilation and administration of the mini minor capex program. However, we are probably 6 months away from creating this position.

5. This email was provided to the applicant but the role initially went to Mr Trevor Russell who was returning to Adelaide from a position of station manager at a fire station in Broome. Mr Russell then contacted the applicant requesting some advice and help with carrying out the functions of the new role. Mr Russell told the applicant that he had no intention of staying in the role indefinitely and that he wanted him to transition across to eventually take over the full function of the role. As a result, the applicant submitted an application for the role by email dated 13 May 2013. The email concluded:

   As per our discussion, I am willing to agree to a 3 month secondment period to trial this process. In order to do this I am requesting that my remuneration be in line with the Fire Commander’s salary structure.

6. There was no formal response to this application but sometime later in about October 2013 the applicant was advised that he could transition into the role. Mr Skewes took him over to Mr Russell’s office and told him that he would be taking over his responsibilities. There was no discussion about remuneration or job definition. The new office was situated away from the Adelaide airport fire station in the operations building located at Tapleys Hill Road.

7. The employment records show the official start date for the new role was 18 November 2013. On that day the applicant was taken off the operational roster and put on the Fire 1 roster which denotes that the employee was non-operational.

8. On 29 November 2013 Liza Pegorer, Manager of Business Support for Airservices, wrote to Mr Skewes with respect to the applicant and said:

   I have spoken with Michelle about our desire to have John continue on from the work Trevor established with Alarmon. She is supportive of a 6 month secondment. This will allow us time to consider the broader question about fire alarm monitoring.

   At the moment I do not have allocated budget to bring John across on a secondment. I will need to develop the business case for approval of the position and associated budget. I have asked Miranda to assist me with that. We will progress it and I will keep you abreast of developments.

9. A copy of the above email was provided to the applicant shortly after it was sent. Under cross-examination the applicant explained his understanding of the position as follows:

   As far as I was concerned I’d been placed in a different position that was outside of aviation and fire and rescue duties, it was allocated to Business Support and it was a new role that was being evaluated and possibly created.[1]

   [1]     Transcript 23 April 2018, 103.

10. Later in his evidence the applicant accepted that at least initially it was a temporary assignment for 6 months and that unless a permanent position was created he would at some stage have to go back to his operational role.[2] He understood that if a permanent position was created, then he would not necessarily get it.[3]

    [2]     Ibid 111.

    [3]     Ibid 112.

11. Further with respect to his understanding of the role, the applicant said:

    I knew it was under evaluation and I know it hadn’t been defined and until that happened, I knew that the role was temporary and was still pending a decision. So, I can’t say I was permanently in that position. I was acting national Fire Alarm Administrator. I was not appointed to that position permanently at that stage. It was still under consideration and I was quite aware of that.[4]

    [4]     Ibid 119.

12. Mr Charles Barnard was the Chief Superintendent for the Southern Region of Airservices based in Melbourne. Mr Barnard was responsible for the applicant from a management perspective after he began performing the role. Mr Rodney Sciortino was the Manager of National Operations at the relevant time and was responsible for all firefighters nationally including the applicant. He was also based in Melbourne. Mr Barnard thought the applicant was doing a good job but had concerns about whether the arrangement would continue indefinitely so he sought clarification from his manager, Mr Sciortino. On 30 January 2014 Mr Barnard sent an email to Mr Sciortino stating:

    Re our discussion on the Firemon reliability issue. LFF John Terbizan, Adelaide is on light duties and assisting Business Support in resolving Firemon issues.

    He has excellent technical knowledge and has proved his worth already by resolving Launceston and Sydney issues.

    John is working well above the level of his job description and accountabilities.

    His preferred option is to continue on the Firemon work however I believe that to do this we need to size this job to determine a suitable level of responsibility and remuneration.

13. Mr Sciortino responded saying that he would contact Ms Pegorer.

14. By email dated 12 March 2014 the applicant contacted Ms Pegorer seeking clarity about his job description and remuneration level. Ms Pegorer explained by email that same day that unfortunately at this point in time she did not have an answer for him but that she would undertake some enquiries and get back to him as soon as possible.

15. Ms Pegorer contacted the applicant again by email on 7 April 2014 advising that they are close to finalising a course of action and asking for his patience a little longer on this. In a further email dated 16 April 2014 Ms Pegorer said that she still did not have an answer but that they had made progress. She explained that they were investigating the possibility of instigating a Business Improvement Initiative so as to provide a complete picture of the fire alarm system. She told the applicant that he would be contacted with respect to this activity and that his “experience and knowledge will be invaluable to that process”.

16. On 6 May 2014 Ms Pegorer responded to Mr Barnard’s email saying:

    thanks for your email. I understand the predicament and assure you (as I have John) that his contribution is valued.

    … Regarding John’s position and remuneration I am unable to offer anything more at this stage. We will need to wait for the outcome of the work being done – one outcome may be that ARFF create a permanent position covering alarm activity. If that is the case, there may be further opportunity for John at that time. In the meantime I have provided John with a new phone and laptop to try and make his role a little easier and I also hope that he is enjoying remaining active whilst doing this given he is currently on light duties. If there is anything else I can do in the meantime, please let me know.

17. As part of his role, the applicant engaged in extensive communications and compiled data for the purpose of providing an overview of the job and its complexities. Over time, however, the applicant became increasingly frustrated and stressed about the lack of response with respect to his role. He also felt that his responsibility level was increasing all the time and it frustrated him that his remuneration had not increased. He was under the impression or the hope that the job would be defined and that the right thing would be done.[5]

    [5]     Ibid 62-63.

18. With respect to the performance of his duties the applicant said in his written statement:

    I identified some serious safety concerns as regards the monitoring of the fire alarm systems at airports nationwide. My entire ethos as a career firefighter meant that I was unable to ignore these safety concerns. It was very stressful and frustrating that my continuous attempts to have these safety concerns investigated and resolved were not taken seriously, not acted upon and at times, completely ignored.

19. In June 2014, the applicant consulted his General Practitioner, Dr Wallace, with respect to his stress and physical symptoms which included sleeplessness at that stage.

20. On 18 September 2014 Ms Miranda McMahon, the human resources advisor for Airservices, wrote by email to Mr Sciortino and Ms Pegorer with a copy to Mr Barnard saying:

    I have been made aware that John Terbizan who is a leading Fire Fighter at Adelaide Station has been placed on the Fire 1 roster and is undertaking fire alarm monitoring issues. My understanding is that John has now requested through his fire station manager [Geoff Skewes] and regional manager [Charles Barnard] for his remuneration to be discussed and increased for the tasks that he is carrying out.

    After further review, I have established that the position John is sitting in is that of a leading fire fighter and there is no actual position for the fire alarm monitoring role.

    By way of background, Geoff Skewes discussed that John has Scietica [sic] and had some time off and when this project came up it was then decided that he was the best person to perform the tasks and would undertake it being placed on the Fire 1 roster. Please note that we have no medical advice on this and he has not been part of a fitness for duty process.

    …

    Recommendation

    I propose for your consideration and discussion that the role of Fire alarm monitoring is placed into a role description and sized appropriately, once this is finalised a position is created … and the position is filled …

    If John is the best person for the position he is seconded into the position and if/when he is placed back into his role as LFF, if he is not able to undertake the role of LFF, the fitness for duty process is then commenced.

    Please note that I have raised this matter with you both as I am aware that the position was originally within the Business Support team and is now with the Adelaide Station.

    …

    Can you please discuss and let me know if you require further details or my assistance further in this matter.

21. The applicant took recreational leave from 22 September to 10 October 2014. Upon his return he sent an email to Mr Sciortino dated 14 October 2014 saying:

    I have been operating in the capacity of (Systems operator for Arff Fire Alarms) for approx one year. …

    I am currently still attached to the Adelaide ARFF on LFF classification. I have been advised by Geoff Skewes that attempts were being made to define my role and to give it appropriate classification and pay scale. In previous discussions I was advised by Glenn Wood that I was supposed to be under the Business Support section with Liza Pegorer. She informed me that Marcin Hiziak was conducting a business improvement report to address this matter and that it would be in consultation with senior ARFF management.

    I am still uncertain as to what will eventuate and this is very unsettling. I have been a member of ARFF for 32 yrs, 8 yrs with the MFB in Melbourne and am now in a position of Limbo. I have not officially transferred to a new position and I feel like I have just “faded out” and disappeared from operational duty. As this whole procedure drags on it is becoming quite emotionally disturbing.

    If the position is viable and can have permanency, I would ideally like to relocate to Melbourne. …

    I appreciate all the efforts that have been made so far and am grateful to all concerned.

22. Mr Sciortino responded that same day saying that Ms Pegorer and Mr Barnard had scheduled a meeting next week to discuss the matter and that Mr Barnard would come back to him following that meeting with a plan.

23. At some stage Mr Skewes advised the applicant that he thought he would be pleased with the outcome and to stay positive. Mr Skewes had got the impression that Mr Barnard and Ms Pegorer were working hard to create a position for the applicant and he passed that on. However, he did not make any promises to the applicant about his role or his pay because it was not his place to make decisions about those matters.

24. On 30 October 2014 the applicant wrote by email to Mr Sciortino saying:

    has there been any progress made?

    I have had no communication from anyone and am still unsure of where I stand.

    The level of my involvement is continuously increasing and I am finding a lot of issues that need addressing. I am basically keeping the system greased and oiled, but it requires scrutiny at a deeper level. There are issues with outdated client information within the Firemon database that need updating. This also ties in with the PREP which is currently being referred to me since Pete McMahon has not been available. Whenever issues arise with commissioning and liaising with station managers, it is being directed to me for assistance. Apart from trying to resolve technical issues within the alarm system, I also have been dealing with client issues for Di de Britt.

    As you can see this is quite a complex and diversified task. I have no problem doing all this (I find it quite rewarding), but my current status within Airservices is quite unsettling. I am operating on a day-to-day basis, unsure of my future. I am also operating at a much higher level than my current designation, and this involves a higher level of responsibility and knowledge application.

    Basically it is the uncertainty and lack of resolution that is slowly wearing me out emotionally. I am quite happy to continue my employment with Airservices for as long as possible, but my wife and I would like to make plans for the future and this is impossible not knowing what our financial status will be for the next few years.

25. The decision to phase out the applicant’s role as fire alarm administrator was made by Airservices’ senior management team on the recommendation of Ms Pegorer after she consulted with Mr Sciortino and others on that team. The decision followed on from the Business Improvement Initiative which had considered the role and the need for it. Ms Pegorer said that the investigation into the fire alarm monitoring systems including the role of the applicant as fire alarm administrator had taken longer than anticipated but that it was a complex process.

26. Mr Sciortino then wrote to the applicant by email dated 5 November 2014 at 9:23 AM saying:

    Thanks for your patience with this. As Charlie may have already briefed you, we have commenced a process to wrap up the work you are currently undertaking. As this will take some take [sic] to finalise Charlie will consult with you about the options available to you and will also formally outline this in a letter.

    We appreciate your efforts on this task and hope that we can come to a mutually satisfactory position shortly.

27. Mr Sciortino immediately forwarded the above email to Ms Pegorer and Ms McMahon with a copy to Mr Barnard under cover of an email stating “FYI – time for that letter”.  That was a reference to the letter later sent on 24 November 2014 informing the applicant that his role was to be phased out.

28. Mr Sciortino gave evidence that he expected Mr Barnard to speak to the applicant which is why he wrote in his email “[a]s Charlie may have already briefed you”.[6] Mr Sciortino explained in cross examination that when he said “wrap up the work” he was referring to discontinuing the role that the applicant had been performing.[7]  The applicant interpreted it to mean to come to a decision. He did not see it as indicating that they were going to cease the operation of his role.[8]

    [6]     Transcript 26 April 2018, 266.

    [7]     Ibid 281.

    [8]     Transcript 23 April 2018, 76-77.

29. At 9:32 AM on 5 November 2014 Ms Pegorer sent an email to Mr Sciortino and Ms McMahon with a copy to Mr Barnard saying "[c]an someone confirm that Charlie has spoken to John please”.  Ms Pegorer explained in evidence that she wanted to ensure that someone spoke to the applicant before he got the letter.

30. Mr Barnard responded immediately to Ms Pegorer saying: “Hi Liza, no [sic] yet, Will try and contact him today. I briefed Geoff but have not caught up with john. I’ll let you know when I have done so”.

31. At 10:23 AM on 5 November 2014 the applicant responded by email to Mr Sciortino with a copy to Mr Barnard saying:

    Once again, thanks.

    Further to this, I have not been briefed at all by anyone regarding this matter and have absolutely no idea as to what is being proposed. I am constantly being told that someone will get back to me and no one ever does. This leaves me in a state of utter frustration and uncertainty, and as a result there is no job satisfaction leaving me with a feeling of irrelevance and disregard. I don’t want to appear “pushy”, but I have been left in a state of “Limbo” for over 12 months.

    Due to the complexity of our Fire Alarm Monitoring system, is [sic] requires continuous scrutiny and maintenance. This position is necessary.

    This was highlighted by the fact that the problems escalated once Peter Leader’s contract was terminated. The safety workshops on this matter highlighted the associated problems.

    Whether you utilise my services or employ someone else, unless this is done it will once again go downhill instead of slowly moving forward and being continuously maintained. As Geoff Skewes indicated to Liza Pegorer, there is no one else in ARFF that has the background and qualifications in this area to be able to operate hand in hand with the IT department in the rectification of alarm issues.

    I know I sound a little bit despondent, and I am. I do appreciate that this is an upper management issue that has to go through proper Protocol. The crux of the matter is “Do you need my service or not?” As no one will communicate with me as to regards to this, I am still very much in a state of “Limbo”, and this is not a nice place to be.

1. It is apparent from the above email that Mr Barnard had not spoken to the applicant at this stage.

2. Mr Sciortino said in cross examination that he considered it was appropriate for Mr Barnard to speak to the applicant and let him know what the decision was and what his options were.  He said that he would not release the 24 November 2014 letter until he knew that Mr Barnard had spoken to the applicant.

3. At 10:47 AM on 5 November 2014, Mr Sciortino forwarded the applicant’s email on to Ms Pegorer and Ms McMahon with a copy to Mr Barnard under cover of an email stating “just in… Charlie will deal with it during his discussion”.

4. At 10:59 AM on 5 November, 2014 Ms Pegorer responded to Mr Barnard’s earlier email saying “[t]hanks Charlie. I will review the letter in the interim”.

5. Mr Barnard responded immediately to Ms Pegorer saying “[s]poke to John today, he is expecting a letter from you regarding his options”.

6. On 24 November 2014, Mr Sciortino sent an email to the applicant with a copy to Ms Pegorer, Mr Skewes and Mr James Parker attaching a letter from Mr Sciortino and Ms Pegorer which said:

   This letter is to outline the status of the work associated with fire alarm monitoring and to provide you with an option as how you would prefer to proceed within those parameters.

   As Chief Superintendent Barnard discussed with you, on 5 November 2014, your allocation to this work was agreed on the basis of three underpinning points:

   (a) that you were “inoperative”;

   (b) the task would be temporary; and

   (c) that your conditions continued as per your substantive role.

   That is, your conditions would continue in accordance with the ARFF Airservices Enterprise Agreement 2013 – 2017, Airservices policies and procedures and Airservices Code of Conduct. Your remuneration also remained as per your substantive role.

   Over the last few months ARFF management has reviewed the end to end internal alarm monitoring process to better understand our obligations in this area. We have concluded that the work you are currently performing within the alarm monitoring environment will phase out over a period of approximately 6 months.

   During this time you may elect to:

   (a) continue your work with the ARFF alarms until the end of the transition period (which we anticipate will occur on or around May 2015) and then return to your full duties as an Aviation Fire Fighter; or

   (b) return to your full duties as an Aviation Fire Fighter immediately.

   We ask that you indicate your election by completing the area below and submitting it back to Superintendent Geoff Skewes before 30 November 2014.

   We would like to take this opportunity to express our sincere thanks for the commitment and diligence you have shown in fulfilling this temporary assignment. It has been appreciated and certainly aided us in understanding the breadth of the functions associated with fire alarm monitoring.

7. The applicant forwarded Mr Sciortino’s email to Mr Barnard that same day and said “you asked me to forward this to you when I received it”.

8. On 30 November 2014 the applicant signed the acknowledgement contained in the 24 November 2014 letter which confirmed that he accepted “the continuation offer for temporary task assignment under the conditions prescribed above”.

9. The applicant was concerned about safety issues and gave evidence in his written statement that:

   I had serious safety concerns regarding the way that fire alarm systems were being monitored and felt that I had a duty of care to continue in the role for as long as possible. I was also hopeful that there would be a reconsideration of the matter and that in the interests of safety the role would be extended well beyond the six month phase out period that was proposed at the time. I felt strongly that the safety of our customers was a priority.

10. The applicant was concerned that Airservices was not meeting its duty of care with respect to its clients and that lives and property were being put at risk as a result. These safety concerns and in particular the concerns identified by the applicant regarding malfunctions in the monitoring system were raised at a meeting in April 2015 at the Adelaide airport. The applicant participated in this meeting together with seven other panellists collectively described as the risk assessment review panel.

11. Samuel Woodman was the Operational Risk and Safety Specialist at Airservices and he compiled a report as a result of that meeting.[9] An initial draft was prepared on 16 April with the final draft of version 1.0 dated 7 July 2015. A version 1.3 was dated 1 September 2016.

    [9]     Exhibit 13, Statement of Samuel Woodman, Annexure SW-1, Operational Risk Assessment Reports.

12. The applicant continued the role in 2015. He applied for and was granted a voluntary redundancy.  He took recreational and long service leave from 17 June to 5 August 2015. Upon his return he ceased working with Airservices in any capacity.

13. The applicant attended a mediation with Airservices at the Adelaide airport on 16 March 2016.

14. On 4 April 2016, the applicant lodged a claim for worker’s compensation.

15. On 16 June 2016, a delegate of the respondent made an initial determination to the effect that:

    - the applicant suffers an ailment, being an “adjustment disorder with depressed and anxious mood”;

    - the ailment was contributed to, to a significant degree, by his employment with Airservices;

    - the exclusionary provisions of the Act apply.

16. The initial determination was affirmed on review on 27 July 2016.

    Meeting on 5 November 2014

17. It was a factual issue of some contention at the hearing as to whether there was a meeting between Mr Barnard and the applicant on 5 November 2014 and, if so, what was discussed at that meeting.

18. The applicant said in examination in chief that he had no discussion with Mr Barnard on 5 November 2014.[10] The applicant did say that he might have spoken to Mr Barnard at some time prior to 24 November 2014.[11] In cross examination the applicant said that he did not remember having any conversation with Mr Barnard about his role coming to an end and he said that when he received the 24 November 2014 letter “it was like getting hit by a truck”.[12]

    [10]    Transcript 23 April 2018, 69.

    [11]    Ibid 70.

    [12]    Ibid 128.

19. Mr Barnard has no independent recollection of a discussion on 5 November 2014[13] but he did recall a conversation with the applicant and Mr Skewes after meeting with Ms Pegorer.[14]

    [13]    Transcript 24 April 2018, 151.

    [14]    Ibid 163.

20. Mr Sciortino recalled asking Mr Barnard whether he had spoken to the applicant because that was the trigger for him to send the letter dated 24 November 2014.[15] Mr Sciortino worked in the office next to Mr Barnard and said in evidence that Mr Barnard told him that he had spoken to the applicant about the decision to end his role as fire alarm administrator.[16] 

    [15]    Transcript 26 April 2018, 270.

    [16]    Ibid 289 and 293-294.

21. The respondent relies upon what was written about the 5 November 2014 discussion in the 24 November 2014 letter to support a contention that the applicant was given verbal notice prior to the letter that his role was being phased out. We reject that contention.

22. The 24 November 2014 letter contains a paragraph which refers to a discussion between Mr Barnard and the applicant on 5 November 2014 that “your [the applicant’s] allocation to this work was agreed on the basis of three underpinning points”.  In a separate paragraph that follows, the letter gives notice to the applicant that “[w]e have concluded that the work you are currently performing … will phase out over a period of approximately six months”.  This separate paragraph is not expressed as having been the subject of the discussion on 5 November 2014.  Contrary to the respondent’s contention, this paragraph is consistent with the applicant being advised for the first time in this letter that his role as fire alarm administrator was going to phase out over approximately six months. 

23. If this notice had been given orally on 5 November 2014 then you would expect the letter to be expressed as a confirmation of that notice.  Further, if Mr Barnard had given the notice orally on 5 November 2014 then you would expect him to have some recollection of that conversation and you would expect that the applicant would have responded strongly because he would no doubt perceive it as bad news.  It is telling that Mr Barnard has no recollection of it and that the applicant says it did not happen and that he was first informed that his role was no longer required in that letter of 24 November 2014 which “was like getting hit by a truck”. 

24. Mr Barnard said that he received a draft of the 24 November 2014 letter before it was sent[17] which in his mind supports that the said discussion actually took place because he would not have allowed it to go out if was not accurate.  However, for the reasons already set out, that does not provide support for a finding that the discussion included notice that his role was being phased out.  Indeed, it is entirely consistent with Mr Barnard not having told him that his role was to be phased out.

    [17]    Transcript 24 April 2018, 147.

25. In Mr Barnard’s written statement of 24 February 2018 he said nothing about informing the applicant about his role being phased out.  Rather, he said:

    [12] I had a meeting in Canberra in or about October 2014 with Ms Liza Pegorer. We discussed whether Mr Terbizan should continue in the Role, but no decision was made. I could not have made such a decision, or been involved in making such a decision, as that would have fallen outside my area of responsibility. I also recall becoming aware that the Role may potentially not be required in the future due to a system change. However, I do not recall precisely how I learned about that.

    [13] I do recall having conversations with Mr Terbizan and Mr Geoff Skewes after my meeting with Ms Pegorer. I did not comment about what the Decision was likely to be. I could not have said much about the Decision because it was not going to be made by me. I did not find out what the Decision was until after it had been made.

26. As to whether the applicant was aware that a decision was going to be made, Mr Barnard said “I’m confident he was aware that there was a decision going to be made, but what that decision was, none of us knew”.[18]

    [18]    Ibid 150.

27. In conclusion with respect to the issue of the 5 November 2014 discussion, we find that there was a discussion between Mr Barnard and the applicant on 5 November 2014.  We base this finding on the email from Mr Barnard to Ms Pegorer on 5 November 2014 which is a contemporaneous record. Mr Barnard told the applicant that a decision was being made about his role as fire alarm administrator and that he could expect a letter regarding his options.  In addition, Mr Barnard told the applicant to send him the letter once it was received by him.  That is apparent from the contemporaneous emails of 5 and 24 November 2014 and other surrounding circumstances.  It is more likely than not that the discussion included those matters set out in the second paragraph of the 24 November 2014 letter.  However, the discussion did not include him being informed that his role was to be phased out. 

28. The letter of 24 November 2014 was the first notice that the applicant received that his role was to be phased out.  The email from Mr Sciortino to the applicant dated 5 November advising that “we have commenced a process to wrap up the work you are currently undertaking” was not notice that his role would discontinue. 

    MEDICAL EVIDENCE

29. There was no real dispute between the psychiatrists who provided written reports and concurrent oral evidence.

30. Dr Davis, for the applicant, diagnosed the applicant’s condition as a chronic adjustment disorder with anxiety and depressed mood with the onset of disruptive psychological symptoms in late 2014. He said that the notice of termination of his role as fire alarm administrator in November 2014 triggered the onset of more disruptive psychological symptoms.

31. Dr Ewer, for the respondent, said that the applicant was suffering from a chronic adjustment disorder with depressed and anxious mood and that the clinical onset of this condition was November 2014. He said that his adjustment disorder was precipitated in November 2014 by the employer notifying him that his position was no longer required. He said that this notification probably significantly contributed to his adjustment disorder. He said that the way the applicant was informed that his position was no longer required also contributed to him developing an adjustment disorder but that he probably would have developed an adjustment disorder irrespective of how that information was conveyed to him. He did not think that there was a way to tell the applicant his position was no longer required that would have resulted in him not suffering from an adjustment disorder.

32. The psychiatrists were asked concurrently whether certain factors contributed to the applicant’s adjustment disorder to a significant degree. They said “no” to his belief that he was paid inadequately. They said “no” to his belief that the employer was not adhering to appropriate safety practices. They said “yes” to his employer informing him that his position was no longer required.

33. The psychiatrists were asked what it was about the employer informing the applicant that his position was no longer required that precipitated or triggered his adjustment disorder. They said that it was the fact that his employer believed that it was no longer required. Further, they said that it was the applicant being informed that his position was no longer required. They both agreed that it was not the way in which the applicant was informed that his position was no longer required.

34. As to whether the applicant would still have suffered the adjustment disorder under certain different scenarios they agreed that the applicant would not have suffered the adjustment disorder if his employer did not inform him that his position was no longer required.

    LEGISLATION

35. Under s 14(1) of the Act the respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.

36. “Injury” is defined in s 5A of the Act in part as follows:

    (1)In this Act:

    “injury” means:

    (a) a disease suffered by an employee;

    …

    but does not include a disease … 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.

37. “Disease” is defined in s 5B of the Act:

    (1) In this Act:

    “disease” means:

    (a) an ailment suffered by an employee; or

    (b) an aggravation of such an ailment;

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

    …

    (3)In this Act:

    significant degree means a degree that is substantially more than material.

38. “Ailment” is defined in s 4(1) of the Act: ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

39. In the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, there was a Regulation Impact Statement, which dealt at some length with the proposed change to the exclusion in the definition of “injury”. The Regulation Impact Statement included the following:

    The SRC Act aims to prevent compensation claims being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of reasonable disciplinary action or a failure to obtain a promotion, transfer or benefit in connection with the employee’s employment.

    The term, “disciplinary action”, has been interpreted in a number of court and tribunal decisions very narrowly to mean formal disciplinary action taken under, for example, the Public Service Act 1999 (or prior to this the Public Service Act 1922) or action taken pursuant to an award or certified agreement.

    Consequently, investigations undertaken to determine: whether a probationary appointment should be annulled; formal disciplinary proceedings should be instituted; or management counselling provided to an employee, have been found not to constitute “disciplinary action”.

    Claims for injuries purportedly arising in these circumstances have been allowed, which was not the intention of the Act.

    In Re Tan and Comcare (1997), the AAT held that a session described as a “counselling session” was not counselling but a preceding step, a “discussion, an investigation of complaints”, which did not attract the “disciplinary action” exclusion. In Re Murray and Comcare (1998), the AAT held that “disciplinary action” did not include investigations undertaken prior to formal disciplinary action under section 61 of the Public Service Act 1922.

    As a result of decisions such as these, employers under the SRC Act are exposed to liability for workers’ compensation in a much wider range of circumstances than was intended when the legislation was enacted. The narrow terms of the exclusion provision relating to “disciplinary action” is also inconsistent with a broader exclusion for “management actions taken reasonably” which are a feature of all Australian jurisdictions, except the Northern Territory.

    …

    Objectives

    The Government’s primary objective with the workers’ compensation scheme established under the SRC Act, is to minimise the human and financial cost of work-related injury and disease while at the same time providing appropriate compensation and support for employees injured or made ill through employment. In this context, the Government is seeking to strike a balance between the obligations of employers covered by the scheme to employees injured or made ill through work and the need to ensure that the costs of the scheme are maintained at a reasonable level.

    It was the original intention of the legislation to ensure that there is a close connection to employment as the cause, aggravator or contributor of a worker’s disease or injury, before eligibility for workers’ compensation can be established.

    A further objective, through the exclusionary provisions, was to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation.

    Achieving these objectives would restore Parliament’s original intention regarding the operation of these provisions.

40. The Explanatory Memorandum included notes on clauses. The notes on the main amendments, in Sch 1, included the following notes on the definition of “injury”:

    The new definition retains all the elements of the existing definition of injury but extends the exclusionary provisions.

    The existing definition of injury excludes any disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. The new definition makes it clear that the exclusions will extend to all reasonable management activities.

    ISSUES

1. There is no dispute that the applicant suffers from an “ailment” namely an adjustment disorder with depressed and anxious mood (the Adjustment Disorder). 

2. There is no dispute based upon the expert evidence given jointly by the medical experts that the Adjustment Disorder was contributed to, to a significant degree, by the applicant’s employment with Airservices such that the definition of disease in s 5B of the Act is satisfied.

3. The experts agreed that the other relevant employment related factors did not contribute to the Adjustment Disorder to a significant degree. The respondent describes these factors as non-significant factors.  The applicant disagrees.

4. The issue for determination is whether the exclusionary provision in the definition of injury in s 5A of the Act applies, namely whether the Adjustment Disorder is a disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. That issue can be broken up into the following elements:

   (a)was the Adjustment Disorder suffered as a result of the administrative action?

   (b)was the administrative action in respect of the employment of the applicant?

   (c)was it reasonable administrative action?

   (d)was the administrative action taken in a reasonable manner?

5. There was a further issue as to what constituted the relevant administrative action.  The respondent contended that the relevant administrative action was the notification of the applicant by letter to him dated 24 November 2014 and that it did not include the making of the decision itself.  This is too narrow an approach. For example, in order to properly determine whether the notification was reasonable, it is necessary to consider the reasonableness of the decision itself.  It would be nonsensical to divorce the decision from the notification.  The relevant administrative action was the notification by letter dated 24 November 2014 to the applicant of the decision to discontinue the applicant’s role as fire alarm administrator (hereinafter referred to as the Decision Notification).

   Was the Adjustment Disorder suffered as a result of the administrative action?

6. The High Court in Comcare v Martin (2016) 258 CLR 467 held that an employee has suffered an injury “as a result of” administrative action if the administrative action is a cause in fact of the injury which the employee has suffered. What must be established is a causal connection between the administrative action and the suffering of the disease. The Court said further:

   [45] … 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.

   [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 management 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 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. 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.

   [48] The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.

   (citations omitted)

7. The applicant contends that his safety concerns were sufficient to result in the Adjustment Disorder and would have been a significant contributing factor to the ailment even in the absence of other factors.  If that contention is accepted then it follows that his disease was not “the result of” the Decision Notification because the Adjustment Disorder would have developed in any event. The applicant relies on the Full Federal Court decision of Lim v Comcare [2017] FCAFC 64 where several employment-related actions contributed to an adjustment disorder condition. The Full Court held that, in a case where s 5B(1) is involved and all of the factors causing the condition were work-related, the exclusion in s 5A(1) will only be satisfied if the employee would not have suffered the condition if the relevant administrative action had not been made. The Full Court said:

   [40] When regard is had to Comcare v Martin, a deficiency in the Tribunal’s decision making in Dr Lim’s case becomes apparent. What the Tribunal failed to do was address the entirety of the question to which the application of the exclusion in s 5A (1), when read with s 5B, gave rise.

   [41] As noted earlier, in Dr Lim’s case, there was no dispute that the relevant adjustment disorder (being an ailment as defined in s 5B(1)(a)) was contributed to, to a significant degree, by Dr Lim’s employment by ACMA. Put another way, as in Ms Martin’s case, only employment related factors were identified as contributing to Dr Lim’s ailment. In this circumstance, applying Comcare v Martin, to satisfy the causal requirement in the exclusion in s 5A(1), the Tribunal had to be satisfied that Dr Lim would not have suffered an ailment (or aggravation of an ailment) if the performance appraisal had not been taken.

   [42] In Ms Martin’s case, the High Court identified as “critical” the Tribunal’s finding that returning to her substantive position was a direct and foreseeable consequence of the decision in her mind and that this triggered the deterioration of her mental condition. There was no finding of this kind in Dr Lim’s case.

8. The issue as to whether the safety concerns contributed to a significant degree to the Adjustment Disorder was the subject of medical evidence.  Both experts said that they did not.  It was their joint opinion that the only factor that contributed to a significant degree to the Adjustment Disorder was the decision and notification that his position was no longer required.  They also found that the applicant would not have suffered the Adjustment Disorder if Airservices had not informed him that his position was no longer required.

9. The safety concerns alone were not sufficient to result in the Adjustment Disorder. We accept the opinions of the experts and consequently reject the applicant’s contention.  It follows that the required causal connection is established such that the Adjustment Disorder was the result of the Decision Notification.

10. An alternative contention was put by the applicant that the significance of the decision to end the role to the applicant relevantly contributed to his ailment only in the sense that it increased his safety concerns rather than because of the impact on himself. The applicant contends that the fact that the applicant was not personally required for the role was not what upset him but rather it was the safety concerns arising from the discontinuance of the role. 

11. The applicant had expressed his concerns about safety and the need for the fire alarm administrator role to be maintained in his email of 5 November 2014 to Mr Sciortino where he says that “[t]his position is necessary … Whether you utilise my services or employ someone else”.  On the other hand, there was a personal aspect to his concerns.  In the same 5 November 2014 email, he expressed frustration at the uncertainty associated with his role leaving him with “no job satisfaction” and “in a state of ‘Limbo’ for over 12 months”.  The same sense of personal frustration was expressed in the applicant’s 30 October 2014 email where he said “[b]asically it is the uncertainty and lack of resolution that is slowly wearing me out emotionally”. Similar personal concerns had been expressed in his 14 October 2014 email where he said “[i]f the position is viable and can have permanency, I would ideally like to re-locate to Melbourne”.  The focus of his October 2014 emails was not to express his safety concerns but was rather that the applicant wanted an end to the uncertainty by his position becoming permanent and he considered he was the most qualified person for that job. 

12. When the applicant was told his role was not to become permanent, this impacted upon him primarily because he was disappointed personally at not being given a permanent position as fire alarm administrator. The applicant was also concerned about the safety issues he perceived as arising from the decision to not have a permanent fire alarm administrator but that had a secondary and much less impact.  In terms of what contributed to a significant degree to his Adjustment Disorder, it was the personal impact of being told he was not to be made permanent.  The safety ramifications of the Decision Notification did not contribute to a significant degree to his Adjustment Disorder.  This is consistent with the joint opinion of the experts that the Decision Notification was the only action capable of satisfying the test explained in Comcare v Martin at [45] and [47], namely that without such conduct the applicant would not have suffered the Adjustment Disorder. In other words, the only conduct that satisfies the requisite causal connection is him being informed that his position was no longer required.[19]

    [19]    Exhibit 16, Joint questions for experts, 1.7(e) and Transcript 26 April 2018, 314.

13. Further, the applicant’s safety issues were a “perceived consequence” of the Decision Notification.  The applicant believed that discontinuing his role as fire alarm administrator would have safety ramifications.  However, the High Court in Comcare v Martin tells us that, once the causal connection is established between the Decision Notification and the ailment, the perceived consequence is beside the point:

    [48] The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.

14. It follows that if the safety concerns are a perceived consequence of the Decision Notification then it matters not whether the safety concerns were “real or imagined”. Nevertheless, a considerable amount of evidence at the hearing was given on the issue of safety and it was a contentious issue at the hearing. The applicant contended that the discontinuance of the role resulted in increased risks of both personal and property damage.  The respondent rejected this contention and said that there was in fact no increased risk because all the tasks formerly carried out by the applicant were in effect taken over by a combination of operational staff and technical engineering staff.[20]  Ms Pegorer had proposed a Business Improvement Initiative in about April 2014 so as to better understand the fire alarm monitoring process including with respect to the role of a fire alarm monitor.  Ms Pegorer informed the applicant about the Business Improvement Initiative by email dated 16 April 2014.  Subsequently, the applicant was consulted with respect to fire alarm monitoring issues and he became a member of the Risk Assessment Review Panel for the purpose of the preparation of two Operational Risk Assessment Reports dated 7 July 2015 and 1 September 2016. 

    [20]    Transcript 27 April 2018, 361.

15. The purpose of these Operational Risk Assessment Reports was to document a review of risk assessments in relation to the fire alarm monitoring system (Firemon) utilised by Airservices. Version 1.0 of the report proposed that the existing temporary system administrator role be upgraded to an ongoing/permanent role. The applicant gave evidence in his written statement that this recommendation was never actioned and that his safety concerns were never addressed.  It is true that the system administrator role was not made permanent but it does not follow that the safety concerns were not addressed.  The final version 1.3 of the report differed from the earlier version in that it no longer proposed a permanent system administrator but it did recognise the need to “[e]nsure the required system administrator functions are being undertaken by adequately qualified staff to ensure adequate performance of the system”.  There is no evidence to suggest that this did not happen. Mr Woodman explained that the proposal was that the system administrator tasks would be performed by a combination of operational staff and engineering staff but that those functions of system administration would still be performed.[21] In this way the safety concerns were addressed because there was a system in place by which the required functions would still be carried out.

    [21]     Ibid 361 and 371.

16. We accept the evidence of Ms Pegorer and Mr Woodman and find that the discontinuance of the applicant as the fire alarm administrator did not result in any of the increased safety risks perceived by the applicant.

    Was the administrative action in respect of the employment of the applicant?

17. The applicant relies on Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; [2012] FCAFC 21 at [33] for the uncontentious proposition that matters of general administration, management and the implementation of policy are excluded from the definition of administrative action with respect to an employee’s employment, even if they affect the employment of employees. He contends that the decision to end the role was an operational one resulting from the Business Improvement Initiative that was set up to consider Airservices’ fire alarm monitoring system as a whole.

18. The mere fact that the action was taken in the context and as an implementation of the Business Improvement Initiative does not mean it was not administrative action in respect of the applicant’s employment. In Comcare v Drinkwater [2018] FCAFC 62, Kenny, Flick and Perry JJ said:

    [74] … CBA v Reeve did not decide that an action was not “administrative action” within the meaning of the exclusion simply because it was taken in implementation of, or in conformity with, an applicable policy.

19. The action that triggered the Adjustment Disorder was the receipt of the 24 November 2014 letter notifying the applicant of the decision to phase out his role. This action was directed specifically to the applicant’s employment, namely his temporary role as fire alarm administrator. The letter informed him that the work he was currently performing would be phased out over a period of approximately six months and gave him the option to either continue the role until the end of the transition period and then return to his full duties as an Aviation Fire Fighter or to return immediately to his full duties as an Aviation Fire Fighter.

20. In CBA v Reeve, Rares and Tracey JJ discussed the scope of “administrative action” and said:

    [60] The qualification in this 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.

21. Further, in Drenth v Comcare [2012] FCAFC 86, the Full Court said:

    [22]… a decision that an employer is not prepared to allow an employee to return to work because of a medical opinion that the employee is then not fit and to require the employee to provide further evidence that he or she is fit, is quintessentially an action that is directed specifically to the employee. Such a decision does not affect him or her because it is some feature of his or her workplace or environment or is otherwise connected to the employee’s employment. Rather, it is a decision about the employment relationship itself. Here, the 30 January decision took Ms Drenth’s employment as a factum and it operated in respect of whatever the duties, incidents, nature and tasks of her employment might have been.

22. The above quotes are apposite to this case because the specific administrative action by way of the Decision Notification was directed to the applicant’s employment as a temporary fire alarm administrator, as opposed to action forming part of the everyday duties or tasks performed by the applicant in that temporary role. The action was “directed specifically to the employee” in the sense that it was specific to the applicant who was the only one carrying out the role of fire alarm administrator.  The action had the consequence of terminating his temporary role as fire alarm administrator and returning him to his previous duties.

23. The administrative action was taken in respect of the applicant’s employment.

    Was it reasonable administrative action?

24. The issue here is whether it was reasonable for Airservices to take action to bring the applicant’s temporary role as fire alarm administrator to an end.  For the reasons that follow, it was reasonable administrative action.

25. When the role of fire alarm administrator was created in early 2013 it was a temporary role that had not yet been fully defined.  The applicant took on the role in November 2013 and understood that it was a temporary role and that whilst the creation of a permanent position was being evaluated, it had not yet been created.  In that sense, the applicant was aware that the role may not lead to anything permanent and that it could be discontinued at any time in which case he would have to return to his usual operational firefighting duties.[22]

    [22]    Transcript 23 April 2018, 95 and 111.

1. The email of 29 November 2013 provided to the applicant spoke of “a 6 month secondment” which would “allow us time to consider the broader question about fire alarm monitoring”.

2. After making some enquiries about his job description and remuneration level, the applicant was told by email on 7 April 2014 that they were close to finalising a course of action.  They asked for his patience and told him about the Business Improvement Initiative which was considering the complete picture of the fire alarm system including the role of a fire alarm administrator.

3. The investigation into the fire alarm system took longer than expected.  The applicant became frustrated due to the lack of certainty but he was never promised a permanent position. 

4. After returning from leave on 10 October 2014, the applicant escalated the issue by writing the emails of 14 and 30 October 2014 expressing his dissatisfaction about the uncertainty of his role. 

5. A decision about his role was finally made on or just before 5 November 2014.  The decision was made by Airservices’ senior management team on the recommendation of Ms Pegorer after she consulted with Mr Sciortino and others on that team.  Whilst the applicant seeks to impugn the decision, it does not appear to have been made rashly or without proper consideration.  Indeed, the length of time it took to make the decision suggests that it was given lengthy consideration. The decision was made in the context of the Business Improvement Initiative.  Ms Pegorer spoke to operational people such as the chief fire fighter and the regional managers. She consulted with Airservices’ engineers and technical staff.

6. There is nothing inherently unreasonable about bringing to an end a role that was not permanent.  Indeed, that is what one would expect with respect to a non-permanent role.

7. In these particular circumstances, it was reasonable to phase out the role of fire alarm administrator because steps had been taken to ensure that tasks comprised in the role would still be performed, albeit across a range of staff.[23]

   [23]    Transcript 27 April 2018, 361 and 371.

8. Given that the role was always a temporary one and the evidence suggests appropriate consideration was given to whether to end the role or make it permanent, it follows that the decision to end the role was reasonable administrative action.

   Was the administrative action taken in a reasonable manner?

9. For the exclusion in s 5A(1) to apply not only must the administrative action be reasonable but it must be taken in a reasonable manner. This requires a focus on the “how” as opposed to the “what” with respect to the administrative action.

10. In Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42 at 47‑48, it was said that whether an action is taken in a reasonable manner 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 administrative action was taken in a reasonable manner by the employer.

11. There may be more than one way of doing things reasonably. For instance, the Federal Court said in Comcare v Martinez (No. 2) [2013] FCA 439 at [81]:

    It could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably”.

12. Even if it is clear that a matter “could have been handled differently and, probably, better”, that does not mean the action taken was unreasonable as the requirement is that “administrative actions must be undertaken in a reasonable manner, not in a perfect manner”: Lee v Comcare [2012] AATA 867.

13. The applicant contends that the way in which the decision to end the role was communicated was not undertaken in a reasonable manner. The letter of 24 November 2014 was the first notice that the applicant received that his role was to be phased out. This letter was received by email almost 3 weeks after the applicant had been informed by Mr Barnard that a decision was being made about his role as fire alarm administrator and that he would be receiving a letter informing him of the decision and his options.

14. Having made the decision to discontinue his role, Ms Pegorer wanted to ensure that Mr Barnard had a conversation with the applicant and softened the blow before he received the letter informing him of the decision.[24] Whilst Mr Barnard did telephone the applicant on 5 November 2014 he did not go as far as Ms Pegorer expected in terms of telling him that a decision had been made to discontinue his role. Instead, Mr Barnard notified him that he would be receiving a letter setting out the decision that had been made and his available options with respect to it. In that way the receipt of the letter was no surprise to the applicant but its contents were.

    [24]    Transcript 21 May 2018, 26 and 59.  See also the evidence of Mr Sciortino to similar effect: Transcript 26 April 2018, 289 and 293.

15. The applicant submits further that in these circumstances the sending of the 5 November 2014 email was unreasonable because it was sent before any telephone conversation and included the confusing information that “we have commenced a process to wrap up the work you are currently undertaking”.  

16. This email was not notification to the applicant that his role was to be discontinued. The applicant himself was not confused by the contents of the 5 November 2014 email.[25] His understanding as at 5 November 2014, having that day received the email and spoken by telephone with Mr Barnard, was that:

    I was not briefed in any way whatsoever as to the contents of that letter [the 24 November 2014 letter] or what was coming out. The only thing I might have known was that I was to receive a letter indicating what was to proceed.… I was never informed of the contents of the letter, I had no prior knowledge of the contents of the letter, and I wasn’t advised by Mr Skewes either what the contents of the letter.[26]

    [25]    Transcript 23 April 2018, 76-77.

    [26]    Transcript 21 May 2018, 72.

17. In the above circumstances, the email from Mr Sciortino on 5 November 2014 is not unreasonable.

18. The overarching contention of the applicant is that the communication of the decision by email on 24 November 2014 was unreasonable in the following circumstances:

    (a)No one discussed the decision with the applicant or its effect on him prior to the Decision Notification on 24 November 2014.

    (b)Mr Sciortino and Ms Pegorer were aware or ought to have been aware of the applicant’s frustrations and concerns that he raised by emails dated 12 March, 14 October, 30 October and 5 November 2014.

    (c)Despite Ms Pegorer advising the applicant on 7 April 2014 that they were close to finalising a course of action, there was no further correspondence in response to his concerns of uncertainty until October 2014 and only then because the applicant raised the issue himself in his emails of 14 October and 30 October 2014.

    (d)There was then additional and unexplained delay until the applicant was informed of the decision on 24 November 2014.

    (e)There was no explanation in the Decision Notification as to how the safety concerns raised by the applicant would be addressed when the role ceased.

    (f)It was misleading or inaccurate to describe the applicant as inoperative in the 24 November 2014 letter.

19. There were better ways for Airservices to inform the applicant that his role as fire alarm administrator was to be discontinued, but the Decision Notification was undertaken in a reasonable manner for the following reasons.

20. We consider first the facts and circumstances giving rise to the requirement for the administrative action.[27] The applicant was aware that it was a temporary role which may or may not become permanent. The email of 29 November 2013 referred to a six month secondment. The applicant was aware that during the period he was occupying the temporary role of fire alarm administrator, Airservices was considering the broader question about fire alarm monitoring. Further confirmation of this was provided to the applicant by Ms Pegorer in her email of 16 April 2014 advising that Airservices was investigating the possibility of instigating a Business Improvement Initiative which would involve the applicant and all other stakeholders. As foreshadowed in this email the applicant was contacted by Marcin Hiziak and engaged in extensive communications compiling data for the purpose of providing an overview of the job and its complexities.

    [27]    Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42, 47-48.

21. A decision had to be made as to whether to make the applicant’s role permanent and it was appropriate to make that decision in the context of the Business Improvement Initiative.  The applicant wanted a decision to be made because the uncertainty of his position was becoming unsettling. It was in these circumstances that the administrative action was required. In that sense it was not unreasonable for a decision to be made.  We have already found that the decision itself was not unreasonable.  The issue remains as to the reasonableness of how the decision was communicated.  This requires a consideration of “the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented”.[28]

    [28] Ibid.

22. Mr Barnard was aware that the applicant was providing assistance to Business Support and he raised with Ms Pegorer his view that the applicant’s role was undervalued. Ms Pegorer responded to Mr Barnard by email on 6 May 2014 (copying in Mr Skewes and Mr Sciortino) saying:

    Regarding John’s position and remuneration I am unable to offer anything more at this stage. We will need to wait for the outcome of the work being done – one outcome may be that ARFF create a permanent position covering alarm activity. If that is the case, there may be further opportunity for John at that time. In the meantime I have provided John with a new phone and laptop to try and make his role a little easier and I also hope that he is enjoying remaining active whilst doing this given he is currently on light duties. If there is anything else I can do in the meantime, please let me know.

23. Ms Pegorer gave evidence that she expected that the applicant’s manager, Mr Skewes, would have kept him informed about the progress of the investigation.[29] Mr Barnard gave evidence in his witness statement that he recalls a telephone conversation with the applicant in which he told him words to the effect that he was doing a good job and that, if the role was made permanent, they would try to get him a pay increase. It is likely that this telephone conversation took place sometime after the 6 May 2014 email referred to above. Mr Skewes said in his witness statement that he recalls the applicant expressing his desire to him for the role to be made permanent and that he made some enquiries on his behalf and reported back to him from time to time about what he was being told by Ms Pegorer and Mr Barnard.  Mr Skewes said in evidence in chief that after receiving the 6 May 2014 email, he would have contacted the applicant and let him know things were looking good.[30] Mr Skewes also said that he passed on to the applicant from Mr Barnard that things were looking good but they were still working on it.[31] We accept this evidence from Mr Barnard and Mr Skewes which established that there was more contact with the applicant than is apparent from an analysis of the emails alone.

    [29]    Transcript 21 May 2018, 39 and 42.

    [30]    Transcript 24 April 2018, 215.

    [31]    Ibid 214.

24. It is apparent from the email dated 18 September 2014 from Ms Miranda McMahon to Mr Sciortino and Ms Pegorer (copied in to Mr Barnard) that the applicant had requested through Mr Skewes and Mr Barnard for his remuneration to be discussed and increased for the tasks that he was carrying out. The email recommended that the role of fire alarm monitor be created and that if the applicant was the best person for that position then he would be seconded into that position.  It is likely that it was the information in this email that Mr Barnard had passed on to Mr Skewes who in turn passed it on to the applicant.[32]

    [32]    Ibid 214.

25. Throughout the period up to the Decision Notification Mr Skewes was trying to encourage the applicant to stay positive.  During this period the applicant was provided with updates and given support from Mr Skewes and Mr Barnard, but they did not mislead him by telling him that his role would become permanent.

26. Airservices’ conduct leading up to the Decision Notification on 24 November 2014 was not inappropriate or misleading.  It may have been preferable from the point of view of the applicant that a final decision on the fire alarm administrator role to have been made earlier, but the reason for the delay was that it took longer than originally thought to investigate the alarm monitoring issues. The applicant was told about the delay and given a candid explanation by the email of 16 April 2014 from Ms Pegorer and was given further updates by his manager, Mr Skewes, in May and later in September 2014.  At no time was he misled or kept in the dark as to the future of his role and whether it was to become permanent or not.  The applicant may have become frustrated but he took the role on knowing that it was an undefined role which was to be evaluated and that it was temporary and that it may not lead to a permanent position.  This process of evaluation and the decision as to permanency took longer than the 6 months initially foreshadowed but ultimately the decision was made within 12 months and he was given the opportunity to stay on with his role or return to his previous duties in a way that was always contemplated.

27. Further, it was entirely reasonable to inform the applicant of the decision to discontinue the role without referring to safety issues at that time.  There was an ongoing process in place by which safety issues were being considered. The applicant was consulted as part of this process. This became the subject of an initial report in April 2015.  The decision to discontinue his role as fire alarm administrator was made in the context of this ongoing process but it was a separate decision relating to the applicant himself and the temporary role he had been given.

28. It would have been preferable for Mr Barnard and or Mr Skewes to have had a face to face discussion with the applicant and informed him about the decision in a way that may not have come as such a shock as the Decision Notification letter did.  Indeed it was the preference of Ms Pegorer and Mr Sciortino that he be notified of the decision in person and not through an email.  Nevertheless, the communication of the decision by email was not unreasonable.  The applicant was told verbally by Mr Barnard and by email from Mr Sciortino both on 5 November 2014 that the decision was coming and that it would be contained in a letter.  It was not then unreasonable for the email to be sent.  Further, as already found, it was not unreasonable for the role to be discontinued especially in circumstances where the applicant had always been told that it was a temporary role.

29. As to inclusion in the Decision Notification letter that he was inoperative when allocated the temporary role, it was not unreasonable to use the word “inoperative” to describe the status of the applicant as at November 2013 when he commenced the role. The applicant objected to this description and said he was never deemed as inoperative,[33] but he accepted that by taking on the role he was on alternative duties and he was not working as operational.[34] 

    [33]    Transcript 23 April 2018, 73.

    [34]    Ibid 74.

30. The applicant maintained that he was fully operational up until he commenced the temporary role.  Mr Skewes, who was the applicant’s station manager, gave evidence to the contrary that when he first approached the applicant about the new role he was on “limited desk-based duties” or “alternate duties” which made him a good candidate for the role.  Mr Skewes said he was confident that the applicant was not operational when he started the role.[35] This is consistent with an email from Mr Trevor Russell to Ms Pegorer dated 13 November 2013 when he said that Mr Skewes told him that the applicant “will be placed on light duties shortly” and that it was therefore a good opportunity for Business Support to utilise the applicant’s skills and knowledge.  Mr Skewes agreed in his evidence in chief that the applicant was inoperative when he started performing his role.[36]  Mr Barnard described the applicant as being “unfit for operational duties” in an email to Ms Pegorer also dated 13 November 2013.  On 4 November 2013 the applicant consulted his general practitioner regarding his sciatica and a medical certificate was issued excusing him from work from 5 to 8 November 2013. The applicant saw a doctor again on 11, 18 and 22 November 2013. A medical certificate issued on 22 November 2013 said that he should be on light duties until improvement occurs and that “[h]is duties should be limited to desk work only”.

    [35]    See also evidence of Mr Skewes at Transcript 24 April 2018, 211.

    [36]    Ibid 212.

31. The medical and lay evidence establishes that the applicant was not fully operational prior to commencing his role and accordingly it was not inaccurate to describe him as “inoperative” in the 24 November 2014 letter.

32. As to the reasonableness of including the second paragraph in the Decision Notification letter confirming the discussion on 5 November 2014, that depends on whether any such discussion actually took place.  The applicant says that it did not take place.  The second paragraph said:

    As Chief Superintendent Barnard discussed with you, on 5 November 2014, your allocation to this work was agreed on the basis of three underpinning points:

    (a) that you were inoperative;

    (b) the task would be temporary; and

    (c) that your conditions continued as per your substantive role.

    That is, your conditions would continue in accordance with the ARFF Airservices Enterprise Agreement 2013-2017, Airservices policies and procedures and Airservices Code of Conduct. Your remuneration also remained as per your substantive role.

33. We have already found that it is more likely than not that the discussion as described did in fact take place.  Although Mr Barnard has no independent recollection as to whether the discussion took place or not, he says that it likely did because he had seen a draft of the letter and he would not have allowed it to go out if it was not accurate.  Mr Sciortino’s evidence was that he would not have included the second paragraph in the 24 November 2014 letter if Mr Barnard had not told him that he had had the conversation as described with the applicant.[37]  The applicant did not take issue with the accuracy of the letter when he responded by accepting the offer for the role to continue. In these circumstances it was not unreasonable for the Decision Notification letter to confirm that the conversation as described in the second paragraph between Mr Barnard and the applicant did take place.

    [37]    Transcript 26 April 2018, 289.

34. The receipt of the Decision Notification letter by email clearly had a detrimental impact on the applicant. Both experts agreed that it contributed significantly to his Adjustment Disorder and that it triggered the onset of his psychiatric symptoms. When asked to consider the way in which the applicant was informed that his position was no longer required, the experts agreed that it was not the way he was informed that triggered the Adjustment Disorder and said that he would still have suffered the Adjustment Disorder even if it had been done in another way (e.g. at a face to face meeting with a support person present). It follows that it cannot be said that the administrative action was unreasonable because there was an alternative way of delivering the decision that would have avoided triggering the disorder. We do not suggest that the absence of a beneficial alternative renders the decision reasonable in any circumstances, but it is a factor to be considered when determining whether the administrative action was reasonable.[38]

    [38]    See Comcare v Martinez (No. 2) [2013] FCA 439, [81] and [82].

1. The applicant contended that Airservices was aware from the applicant’s emails of 14 and 30 October and 5 November 2014 that he was unsettled and in a fragile state due to the lack of certainty as to his role, and that in those circumstances Airservices should have taken care to act in a more appropriate way. However, it was the opinion of the experts that an alternative approach would not have resulted in a different outcome for the applicant.  Further, the applicant’s emails were a plea for an end to the uncertainty.  The applicant’s email of 14 October 2014 described the uncertainty as “very unsettling” and “quite emotionally disturbing”. In his email of 30 October 2014, the applicant described the uncertainty and lack of resolution as “slowly wearing me out emotionally”. In his 5 November 2014 email the applicant said:

   The crux of the matter is ‘Do you need my service or not?’  As no one will communicate with me as to regards to this, I am still very much in a state of ‘Limbo’, and this is not a nice place to be.

2. The applicant got the certainty he was asking for by the Decision Notification letter on 24 November 2014.  He did not like the outcome but at least the letter informed him of the decision to phase out the alarm monitoring role over a period of approximately 6 months and gave him two clear alternatives as to his future.

   CONCLUSION

3. The Decision Notification which caused the applicant’s condition was reasonable administrative action taken in a reasonable manner in respect of the employment of the applicant. The decision to discontinue the applicant’s role as fire alarm administrator was a legitimate human resource management action which was undertaken in a reasonable manner. In those circumstances it does not give rise to eligibility for workers’ compensation because the exclusionary provisions in s 5A of the Act are satisfied.

   DECISION

4. It follows that the decision under review will be affirmed.

135.    I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten‑Jones, Member A Ward and Member M O’Loughlin.

....................[SGD].............................................

Associate

Dated: 15 October 2018

Dates of hearing: 

23, 24, 26, 27 April
21, 22 May
13 June 2018

Counsel for the Applicant:

Solicitors for the Applicant:

Ms J Battiste

Slater and Gordon Lawyers

Counsel for the Respondent:

Solicitors for the Respondent

Mr A Schatz

Sparke Helmore Lawyers