Tierney and Comcare (Compensation) - [2023] AATA 674

Tierney and Comcare (Compensation) [2023] AATA 674 (5 April 2023)
Division:GENERAL DIVISION
File Number(s): 2021/0437
Re:Mr Paul Tierney
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:5 April 2023
Place:Melbourne

The Tribunal, having considered all the evidence before it, determines that the Applicant is excluded from any form of compensation under the Safety, Rehabilitation and Compensation Act 1988 as the requirement that he undertake the QOL proficiency assessment from 14 May 2020 was a reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2) of that Act.
Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review dated 22 December 2020 to reject Mr Tierney’s claim.
.........................[sgd]...............................................
Ms A E Burke AO, Member
Catchwords
COMPENSATION – where quality online checking requirement of employee found to be significant contributing factor to onset of psychiatric injury – whether quality assurance procedure constituted “administrative action...in respect of the employee’s employment” within the meaning of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether condition arose from reasonable administrative action undertaken reasonably – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2006 (Cth)
Cases
Bryant and National Australia Bank Limited (Compensation) [2021] AATA 2769
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Mooi (1996) 69 FCR 439
Comcare v Martin (2016) 258 CLR 467
Comcare v Stewart [2019] FCA 365
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Long v Comcare (2016) FCA 737
O'Callaghan and Comcare (Compensation) [2019] AATA 4378
Su and Comcare [2011] AATA 934
Trewin v Comcare (1998) 84 FCR 171
Woodhouse v Comcare (2021) 285 FCR 14
Secondary Materials
Services Australia, Staff Quality Management Application (QMA) Proficiency Policy, (version 1.4, June 2021)
REASONS FOR DECISION
Ms A E Burke AO, Member
5 April 2023

The Applicant, Mr Paul Tierney, applied for review of a decision made by Allianz, on behalf of Comcare, dated 22 December 2020 which confirmed the original determination of 13 November 2020 to deny liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). This determination accepted that Mr Tierney suffered from a psychological ailment (“major depressive disorder of variable severity along with anxiety disorder not otherwise specified”) which was contributed to, to a significant degree, by his employment with Services Australia. However, the review officer found Mr Tierney was excluded from receiving any entitlements as his ailment was caused by reasonable administrative action.
On 25 January 2021, Mr Tierney sought review of that decision by the General Division of the Administrative Appeals Tribunal, stating that the decision was incorrect in fact and law.
BACKGROUND
Mr Tierney commenced working at the Department of Human Services (now Services Australia) (the Agency) on 9 October 1996 and retired in February 2022 as an APS4 Service Officer. In this role he was primarily responsible for processing Age Pension claims.
Mr Tierney submitted a Comcare claim on 3 September 2020 for a “psychological injury”, stating that he first noticed symptoms on 2 July 2020 at 3:00pm. In an incident report of the same date, Mr Tierney advised that he sustained the injury following “Further return in QOL for perceived trivial issue” and he described the circumstances as “QOL Tool is unduly harsh and unreasonable and does not take into account possible psychological consequences”.
The following timeline, produced by Services Australia, outlines the agreed events that proceeded Mr Tierney’s Comcare claim:

Date

Event

9/10/1996

Commenced employment with Department of Social Security now known as Services Australia

24/10/2019

Team Meeting held to advise of the plan to have every APS4 trained and accredited as Technical Peer Support Officers and Quality on Line (QOL) Checkers.

03/01/2020

Mr Tierney completed the self-paced learning packages required as part of the Quality on Line Checker (QOL) certification.

·     QOL Checker Accreditation course code CLK01123s

·     QOL Skills Verification course code CLK01123t

10/01/2020

Mr Tierney completed further self-paced learning for QOL checker certification

·     Quality Management Officer course code CLK00874s

·     QMA Skills verification course code CLK00875t

14/05/2020

Mr Tierney commenced the proficiency assessment process

14/05/2020

Non New Claim (NNCL) activity completed by Mr Tierney returned due to an error

28/05/2020

New Claim (NCL) Activity completed by Mr Tierney returned to him due to an error

04/06/2020

NCL activity completed by Mr Tierney returned to him due to an error

05/06/2020

NCL activity completed by Mr Tierney returned to him due to an error

11/06/2020

Service Support Officer (SSO) emailed Mr Tierney providing analysis of his progress and an offer of support. Mr Tierney replied to SSO’s email declining the offer of support.

17/06/2020

Mr Tierney participated in a scheduled coaching session with his Team Leader, Mr So. Mr Tierney expressed that he was feeling stressed about the checking process and thought it was flawed as it would fail activities for mistakes Mr Tierney described as petty or not affecting the overall outcome. Mr Tierney was offered supports from the Technical Support Officer and EAP

30/06/2020

NCL activity returned to Mr Tierney due to an error

01/07/2020

In his statement Mr So stated that as of this date Mr Tierney’s results showed that he achieved intermediate correctness (85% - 94%) which was short of the required 95% correctness required for QOL certification. He was given the option to reduce the sampling rate to 25% (i.e. have less activities checked). As he had not achieved the required proficiency level, the QOL Checker certification process is currently on hold

02/07/2020

Date Mr Tierney specified in his claim form that he first noticed symptoms of his claimed condition. In his statement Mr Tierney stated that he chose this date as it was the date of the last ‘return’ or fail from the QOL process which he states caused his injury

03/07/2020 to 17/07/2020

Personal leave

20/07/2020 to 31/07/2020

Personal leave

21/07/2020

Mr So contacted HR Support for assistance to support Mr Tierney due to his extended period of personal leave

29/07/2020

Mr So made contact via phone with Mr Tierney to check in with him, discuss his ability to return to work and to offer him the support of a rehabilitation case manager (RCM) from HR Support

03/08/2020 to 14/08/2020

Personal leave

04/08/2020

Mr Tierney provided consent via email for the agency to send a questionnaire to his treating doctor

05/08/2020

Work capacity letter emailed to Mr Tierney’s doctor

17/08/2020

Mr Tierney returned to work – returned to full duties and full hours

24/08/2020

Personal leave, no medical certificate provided

31/08/2020

Mr Tierney contacted to enquire if HR Support RCM had received the report from Dr Abbas

01/09/2020

Personal leave, no medical certificate provided

02/09/2020

Doctors report received dated 01/09/2020 stating Mr Tierney is fit to work 3 days per week, 7.5 hrs per day from 7 September 2020 to 5 October 2020

03/09/2020

Mr Tierney lodged an Injury report for a psychological injury and specifying a date of injury of 02/07/2020

04/09/2020

Online claim for compensation received for psychological injury.

07/09/2020 to 05/10/2020

Mr Tierney commenced working 3 days per week, 7.5 hrs per day as recommended by treating doctor.

17/09/2020 to 24/09/2020

Parental leave

05/10/2020

Capacity for work certificate provided

Mr Tierney’s counsel summarised the background to Mr Tierney’s claim at the commencement of the hearing as follows:
(a)At the time of his injury, Mr Tierney’s role in processing Age Pension claims required him to maintain a certain level of accuracy. To assess his accuracy, he was monitored constantly throughout the year by checking samples of claims which he had processed, usually at a rate of 2-5% of the total claims. In addition to this ongoing assessment of his accuracy, he was also required to undertake a proficiency assessment in which 100% of the claims he had processed were checked (‘QOL proficiency assessment’), which occurred at a frequency determined by his supervisor but not more frequently than every 12 months. This QOL proficiency assessment process entailed having 20 claims checked over a set period and if an error was detected, no matter how significant, it would be ‘returned’ as a fail. In order to pass the QOL proficiency assessment, one had to meet a 95% accuracy threshold, which meant that if there was more than one ‘return’ out of 20 claims, then one would not meet the required 95% accuracy threshold.
(b)Mr Tierney had undergone his yearly QOL proficiency assessment in September 2019 which he passed as he met the 95% accuracy threshold. It is the Agency’s policy that he was only required to undertake the QOL proficiency assessment not more frequently than every 12 months.
(c)Mr Tierney learned at a team meeting in about October 2019, a month after he had completed his QOL proficiency assessment for 2019, that there would be a change in the duties of all APS4 Service Officers. He was advised at this team meeting that all APS4 Service Officers would now be required to undertake two additional tasks: one being a peer support officer role and the other a quality online checker role.
(d)Though these roles were contained in the APS4 Service Officer job description, prior to this announcement they had been undertaken on a volunteer basis only. These roles would no longer be voluntary but compulsory for all APS4 Service Officers.
(e)Prior to this announcement, APS4 Service Officers could elect to undertake the role of quality online checker but they first had to demonstrate that they met the 95% accuracy criteria. Now that it was compulsory for all APS4 officers, Mr Tierney and all other APS4 Service Officers were advised that they would be required to undertake the QOL proficiency assessment and pass at the 95% accuracy level. This applied to Mr Tierney despite him having only undergone the process the month prior. Mr Tierney’s team leader advised that this assessment was not performance related but was upskilling for all APS4 Service Officers to perform these additional tasks.
(f)Prior to this meeting, Mr Tierney had volunteered and been selected to act as technical peer support officer, having met the criteria for that role.
(g)On learning of the decision to change the duties of APS4 Service Officers to include the quality online checker role, Mr Tierney discussed it with his team leader and told him that he did not want to do the quality online checker role and did not want to undergo the QOL proficiency assessment again, having just completed it a month prior.
(h)Relevantly, Mr Tierney told his team leader that he didn’t want to be checking other people’s work because not only did it make others feel ill, but it also made him feel ill. He stated that he did not want to be responsible for making other team members miserable. He also asked his team leader if he could be exempted because he intended to retire in 18 months.
(i)Mr Tierney claimed that his team leader responded with words to the effect of, “you’ve done this before, it’s a requirement for everyone”.
(j)Mr Tierney began the process of undertaking the QOL proficiency assessment in relation to the quality online checker role in May 2020, and in the course of undertaking this he developed a major depressive disorder and anxiety.
(k)He sought treatment from the employee assistance program (EAP) in June 2020. Mr Tierney repeatedly expressed his concerns to his team leader, Mr So, telling him that he was feeling stressed by the QOL proficiency assessment process.
(l)The situation culminated when Mr Tierney could no longer continue working and he saw his general practitioner on 3 July 2020. He ceased work for a short time, then returned on modified hours until he was eventually stood down and his employment formally ended in February 2022.
Counsel for Comcare accepted that the broad details which Mr Tierney’s counsel provided accurately set out the factual circumstances of the case. Counsel for Comcare submitted that in October 2019 the Agency decided to allocate the quality online checker role to all APS4 staff.
LEGISLATION
Relevantly, section 14(1) of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4 of the Act defines an ailment to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. Relevantly, the interpretative provision at section 4(1) provides that the words injury and disease have the meanings detailed in sections 5A and 5B respectively of the Act, as follows:
5A Definition of injury
(1)In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or;
(c)   an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purpose of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include
(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.
5B Definition of disease
(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.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c)   any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
“significant degree” means a degree that is substantially more than material.
A psychological condition can be considered either a mental “injury” pursuant to section 5A(1)(b) (or an aggravation thereof), or a “disease”, understood as an “ailment” pursuant to sections 4 and 5B(1)(a) (or an aggravation thereof). However, to be considered a disease, the ailment must have been contributed to, to a significant degree, by the employee’s employment. If this threshold is met, or if the condition is considered an injury, then it is necessary to consider whether the exclusion of reasonable administrative action under section 5A(1) applies.
ISSUES
The key issues for the Tribunal’s determination are:
(a)Did Mr Tierney suffer from a “disease” for the purposes of ss 5A(1) and 5B of the Act?
(b)If so, was the “disease” suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, such that the exclusionary provision in section 5A(1) of the Act applies?
EVIDENCE BEFORE THE TRIBUNAL
Medical
Dr Kausar Abbas, Mr Tierney’s general practitioner, opined in a report of 30 December 2021:
History of patient symptoms as per medical notes:
Mr Paul Tierney reported that he has been going through high degrees of stress at his work place. He reported that he has been working at centrelink department for long time and he has been subject to quality process which is very rigorous and it increased his stress. He has not been able to sleep due to this stress. He has been very anxious and reported early morning tension headaches.
Current symptoms and signs:
His symptoms of anxiety are very severe and persistent since July 2020. He reported poor sleep, tension headaches, panic feeling and reduced attention and concentration. He seem to be under lot of stress given the situation at work.
Diagnosis/severity:
Adjustment disorder with anxious mood. His symptoms are at severe and persistent. Given that there has not been much improvement since the injury, the condition is likely to be permanent and long term.
…
Total/permanent disability:
Yes, given no improvement over a long period, his condition is permanent. He qualifies for total permanent disability. He is unlikely to improve with any available interventions such is training or rehabilitation.
Associate Professor Abdul Khalid, consultant psychiatrist, opined in a medicolegal report of 14 December 2021:
SUMMARY AND ASSESSMENT
Mr Tierney is a 55-year-old male who worked with Services Australia for 24 years. He said that the problems started when there were changes in the workplace in 2019 and everyone was required to be a quality online checker. He said that earlier the work was done by volunteer workers. He said that his supervisor was picking up his errors and standing at his desk staring at him. He said that there are lots of in-house corrections in the system and other workers have a cartel and they ask each other to correct and pass it. He said that he felt targeted. He said that he was told that if he put a complaint in he would be tortured.
Mr Tierney said that he felt anxious and started experiencing twitching in his lips, difficulties sleeping and headaches. He said that his family life was falling apart. He said that when he was looking at the computer screen it was going blank. He said that he was obsessively checking his work and rechecking it slowly and he got close to 17-18/20, although he was required to get 19/20 correct. He said that in 2020 he stopped work for six weeks and his supervisor was phoning him and asking him for more medical information, although he had provided certificates.
Mr Tierney said that he returned to work two to three days per week but his attendance declined and eventually he saw his doctor who certified him for a partial invalidity pension for three days per week. He said that he returned to work one day per week which he did for one to two months and then saw his doctor again who told him that he was partially invalidated. He lodged a WorkCover claim in September 2020 which was declined on the basis of reasonable administration action.
Mr Tierney had six EAP sessions, following which he has been seeing psychologist, Ms Zoe Gruneska. He has been prescribed anti-anxiety medication, propranolol 2 tablets daily. He had experienced some stress in the past when he was diagnosed with cancer and when he divorced 20 years ago, although he did not receive a formal diagnosis of a psychiatric condition.
On mental state examination, Mr Tierney was markedly anxious and shaking of both his legs and both his hands and tremulousness of the body was noted. His voice was at times shaky and dryness of mouth was noted. He expressed thoughts of life not being worth living but he denied any suicidal plan or intent. He expressed ideas of helplessness and hopelessness.
Based on the history, mental state examination and the documents provided to me, in my opinion Mr Tierney’s diagnosis is a major depressive disorder with anxious distress according to the DSM-5 diagnostic criteria.

In a supplementary medicolegal report of 16 February 2022, Associate Professor Khalid opined:
Responses To Specific Questions
1. Do you maintain your opinion as set out in your report dated 14 December 2021? In particular do you continue to consider that Mr Tierney:
(a) suffers from major depressive disorder with anxious distress which commenced in 2019 and worsened in 2020.
I still consider that Mr Tierney suffers from major depressive disorder with anxious distress, which commenced in 2019 and worsened in 2020.
(b) sustained this condition as a result of his employment with Services Australia and, in particular, because of the alleged conduct of Mr So and the proficiency assessment process.
I consider that Mr Tierney’s condition arose during his employment with Services Australia but not as a result of the alleged conduct of Mr So. He felt depressed as a result of the proficiency assessment process with which he was unhappy as he felt that the checking was flawed and it did not allow room even for non-payment-affecting errors. Based on Mr So’s statement, it appears that he was trying to implement the process and provide support to Mr Tierney, but Mr Tierney felt stressed because of the process. I do not consider that the alleged conduct of Mr So contributed to his psychiatric condition.
…
Factual Evidence in Respect of the Injury
Services Australia’s ‘Staff Quality Management Application (QMA) Proficiency Policy’, as at June 2021, outlines the process for quality assurance of all processing staff employed at Services Australia:
What is this policy about?
The Quality Management Application (QMA) selects work to be checked based on the proficiency level of individual staff. It is critical that proficiency levels are current and represent the staff member’s capability to ensure the correct amount of checking takes place. The purpose of this policy is to outline the requirements for assessing staff proficiency.
Initial proficiency assessment
This policy applies to all areas of the agency who have staff processing work that is checked in QMA.
Services Australia provided the following explanation of the QOL proficiency assessment process:
A staff member’s proficiency is reviewed every 12 months through the Quality On Line (QOL) Proficiency assessment. The QOL Proficiency assessment is also applied for certification or recertification of a staff member as a QOL Checker.
Staff undergoing proficiency assessment will have every piece of work they complete go for checking. The checking is done on line by QOL Checkers.
To maintain or achieve the Proficient rating at the assessment, the staff must meet the following:
Have a minimum of 20 activities checked in the past 2 weeks minimum to 12 months maximum
Have achieved the minimum correctness rate of 95% (no more than one failed activity out of 20 checked consecutive activities)
The annual assessment is to review and ensure that the staff has maintained the required level of proficiency. When staff meets the 95% proficiency, their sampling rate for checking is then reduced to 2% until their next proficiency assessment when the sampling rate is at 100%. Staff can be undergoing this assessment even before 12 months from their last assessment if there are quality concerns in between the annual assessments or if being applied for QOL Checker certification or recertification.
Activities that go for checking are picked up by a virtual QOL Checker using the QOL Online Checking Tool. The virtual QOL Checker is any certified QOL Checker and is from any teams nationally. The QOL checker then either passes or fails the activity and provides feedback via the Checking Tool. The checking is done using prescribed checking protocols and using relevant legislation, policies and instructions as guidelines. The QOL Checker would provide feedback citing relevant legislation or policies or prescribed procedures to support an adverse result. The staff member can access the QOL Online Checking tool to check on the outcome and the feedback provided by the QOL Checker and to apply any further actions required.
Staff can dispute a check result and the checking is then reviewed by a neutral senior technical officer who can either uphold the original fail result or overturn it.
Mr Tierney’s statement of 5 July 2021 attests:
At the time of my injury I was working fulltime hours, being 37.50 hours per week Monday to Friday. My duties involve processing of Age Pension claims, making outbound customer calls and compiling letters to customers, seeking further clarification or information as required to assist in finalising claims and completing any updates required.
My concerns began in about October 2019 when my employer undertook a campaign to increase and align APS4 Service Officer’s skills in regards to Technical Peer Support and Quality Checking in line with the APS4 Service Officer Job Statement.
At that time, I was a Technical Peer Support Officer and was only required to complete the Quality on Line (QOL) Checker certification skill level, to enable me to perform the duties of an APS4.
The Employer Statement dated 6 October 2020 confirms The Proficiency Assessment process, which staff were required to undergo to become certificated as a quality checker, is also an annual requirement for all staff in customer service deliver.
….
I passed my annual review in September 2019. As I was intending to retire in November 2021 I expected and was hoping that this review would be it. My supervisor, Danny So, had told me that it would be unlikely I would be reviewed again so close to retirement. However, in late 2019, my supervisor announced that there was to be a change to the role of an APS 4 Service Officer. He said that all staff on this level would be require to be Quality on Line (QOL) checkers. Previously this role had been filled by volunteers. He said that in the following year in order to implement this change, all staff with a procedural accuracy under 95%, would need to be subjected to 100% QOL checking. In effect, same as an annual review, yet he stressed this was not performance related and was procedural only. He then said any concerns please see him.
….
On 5 June 2020, I spoke with a counsellor through my employer’s employee assistance program, EAP. I was feeling very stressed under the process and felt it was not possible for me to reach the benchmarks set. I was feeling nervous and ill when submitting the tasks as I was worried that I would not meet the benchmark.
On 17 June 2020, I spoke to my supervisor again and told him again of my concerns with the QOL checking process and that I was feeling stressed about the process. I was just told that it was a requirement of Centrelink and it was required to be done for the business to maintain a high quality of work. I understand this reasoning why, but it did not change the anxiety and mental anguish I experienced when having to think about doing it and then when actually doing it.
.
My mental health was really being affected by the QOL checking process. I felt that I could not continue to work.
On 2 July 2020, the situation became so dire that I reached breaking point. I experienced severe symptoms including chest pain and reduced vision. I realised that I could not continue and needed to see a doctor which I did the following day.
I attended upon my General Practitioner (GP), Dr Kausar Abbas, on 3 July 2020.
On 3 July 2020, I was placed on a Mental Health Care Plan and referred to a psychologist or psychiatrist of my choosing.
Since 6 July 2020, I have been having fortnightly sessions with Zoe Gruneska, Clinical Psychologist, of The Talk Shop, which are fully bulk billed through Medicare. Zoe has been helping me with Cognitive Behavioural Therapy.
I took personal leave from 3 July 2020 to 14 August 2020. I returned to work doing my full hours and duties. However, my doctor certified me fit for 3 days per week 7.5 hours a day from 7 September 2020 to 5 October 2020 as I was still struggling to cope with the effect the QOL process had on my mental health.
On 3 September 2020, I submitted a claim for workers’ compensation.
On 13 November 2020, Comcare declined liability for my claim. Whilst they acknowledged I had sustained a major depressive disorder, which was significantly contributed to my employment, they said it was caused by a reasonable administrative action.
I agree with the Allianz delegate that the coaching and quality checking of work is a ‘standard Agency practice’. The QOL checking process is an operational requirement of Centrelink and was implemented to all APS 4 Centrelink Service Officers. The need for me to undertake the QOL was not directed at me individually.
I do not agree with the Allianz delegate that there was an administrative action which caused my condition. I understand the alleged reasonable administrative action to be managing my ‘work quality performance ‘however it was not the management of the process which caused my condition. As I have mentioned above, it was the thought of having to do more QOL checking when just previously completing one and my feelings about how the process was flawed.
Prior to my injury, I enjoyed regular physical activity such as swimming, cycling and gardening. Now I find myself continually fatigued and unable to exercise beyond walking.
Due to almost permanent shaking and poor sleep including nightmares, I am unable to fully assist at home with household tasks and looking after my three young children.
It has now taken me nearly a year of therapy to reach the point where I am now, which is that I have been diagnosed with major depression and severe anxiety. I have now realised and accepted that I will never return to my job full time and am unlikely to return to any level of former competency at any time. I have struggled to learn anything new since my breakdown and cannot cope with the job role anymore.
Mr Danny So’s statement of 28 September 2020 attests:
Prior to the commencement of the QOL proficiency testing Mr Tierney expressed his reluctance to undergo the process but accepted that everyone would need to go through it. This was not the first time Mr Tierney underwent the proficiency testing. QOL proficiency reviews as a minimum are conducted every 12 months. This process has been used by the Agency for over 20 years and is a cornerstone of the Agency’s commitment to quality, in ensuring customer payments and records are correct. This process is undertaken by over 10,000 of the Agency’s staff annually.
On 17 June 2020, Mr Tierney raised his concerns with me during a coaching session about the QOL proficiency testing he was undergoing as part of a national approach to increase the skills of APS4 staff across the agency. Mr Tierney advised he was feeling stressed over the process and thought it was flawed as would fail activities for mistakes that Mr Tierney would describe as petty or not affecting the overall outcome.
To provide some background on this, in October 2019, the agency undertook a campaign to increase the skills of our current APS4 staff who were not undertaking the role of a Technical Support Officer and Quality On Line Checker (QOL Checker). The aim was to provide all APS4 staff with the necessary training and preparation to be able to undertake this work and to utlise their experience and skills to provide support to staff within the agency who are less skilled and not as experienced.
Information was provided to all staff in the last quarter of 2019 outlining the plans to increase the skills of staff at the APS4 level in line with the APS4 duty statement.
With Mr Tierney already skilled as a Technical Support Officer, he was only required to complete the training to be able to work as a QOL Checker.
Mr Tierney was advised of the training he was required to complete and made aware of the QOL proficiency assessment.
On 03 January 2020, Mr Tierney successfully completed the three self- paced learning packages required as part of the QOL Checker certification.
·QMA Skills Verification;
·QOL Checker Accreditation and
·QOL Skills Verification.
To be a Quality On Line Checker (QOL Checker), the staff member also has to undergo a quality proficiency assessment.
This proficiency assessment, while being a requirement for QOL Checker certification, is also an annual requirement for every staff member in a customer service delivery role.
This exercise is to ensure that work quality is maintained by staff applying legislation/policies/procedures correctly in their work. The focus on quality is for us to deliver correct payments and services to our customers.
Mr Tierney last underwent this annual proficiency assessment in September 2019.
On 14 May 2020, we commenced the Proficiency Assessment for Mr Tierney.
The proficiency assessment was done on a staggered basis for workload reasons. Four other team members had successfully completed their assessment prior to Mr Tierney commencing the process.
On 11 June 2020, our Service Support Officer emailed Mr Tierney offering their support as Mr Tierney undergoes the proficiency assessment. In the email, they provided some analysis on the errors Mr Tierney has had to this point and some suggestions on how Mr Tierney might minimise future errors. The email also gave an update on Mr Tierney’s progress. Mr Tierney declined this offer of support.
During a coaching session with Mr Tierney on 17 June 2020, he expressed being stressed over the assessment process and that he felt that the checking was flawed as it did not allow room even for non-payment affecting errors. I acknowledged his concern but also explained to Mr Tierney the need for us to maintain a high quality level in our work to ensure customer payment and records are correct. I also mentioned the availability of support from our Service Support Officers which he had previously declined and continued to do so. I also reminded Mr Tierney of support available in our Employee Assistance Program. The proficiency assessment process has been utilised for years and one that the processing staff would be very familiar with and be doing every 12 months or so. Mr Tierney himself had undergone this same process before.
During the whole process and particularly after the coaching on 17 June, I had tried to provide as much support as possible. I had given Mr Tierney dispensation from having to meet the productivity standard which is around 3 to 4 claims completed in a day. I had clearly given Mr Tierney approval to take as much time as he needed to accurately complete a claim advising him I would accept a completion rate of 1 claim a day rather than the 3-5 standard output. This support measure was in direct response to Mr Tierney indicating he was feeling stressed and it was aimed at allowing him to focus on improving his quality without also having to maintain the productivity expectations.
Prior to commencing this process, Mr Tierney had never disclosed to me if anything else was happening that could be affecting him and his work. Mr Tierney had never disclosed any specific medical or health issues on any occasions he had taken Sick Leave. I had offered him our Employment Assistance Program of which he informed me he was accessing. I was regularly monitoring his progress and providing Mr Tierney updates, this was done to offer support with any feedback he received from the QOL checking process. Mr Tierney had also been able to monitor his progress himself as I had shown him how to check it in the Quality checking tool.
As at end of 01 July 2020, Mr Tierney achieved an Intermediate correctness level (85%- 94%). This was still short of the required 95% correctness for the QOLer certification. Mr Tierney’s intermediate level enabled us to reduce the sampling rate to 25%, meaning that he had the option of having less of his work checked. Mr Tierney elected to opt for the lower checking rate”. As Mr Tierney has not achieved the required proficiency level, the process of his QOL Checker certification is presently on hold. Future support measures will be looked into.
Mr Tierney notified me on 03 July 2020 in the morning of his inability to attend work on that day as was not feeling well. He later in the day sent me a text message that he had a medical certificate to 17 July 2020 so would be taking Sick Leave for all this time. I then phoned Mr Tierney to obtain more information about his inability to attend work so as to establish what support there might be required for him. Mr Tierney was never forthcoming with any information and stated that he did not have to disclose his medical condition.
I acknowledged the concern Mr Tierney had raised with me about the proficiency assessment process, that he considered it to be flawed as it only identified errors, no matter how insignificant. I had explained to Mr Tierney that while he might consider the mistakes as trivial, these were still errors that impacted on the data integrity of the customer’s record and could have implications on customer’s other or future entitlements.
I offered the support of our Service Support Officers which is a significant support available for staff while undertaking this assessment. Mr Tierney had refused this offer. I had also offered the use of our Employee Assistance Program.
The proficiency assessment process that Mr Tierney expressed concern about is one that has been used by the Agency for more than 20 years and undertaken by over 10,000 of its staff annually. Mr Tierney who is very experienced and, who’s been with the Agency and in his current role for at least 9 years, had undergone this process a number of times the last one of which was in September 2019. I have not seen any records of any issues around this process with Mr Tierney’s previous assessments.
I did not at any time laughed at Mr Tierney.
Regarding my contacting Mr Tierney a number of times to discuss his leave, I phoned Mr Tierney as per our Attendance Policy. Staff are to notify their Managers or a designated person of their absence before the start of their shift. The notification is by phone and a phone text message from staff is not appropriate.
CONTENTIONS
Mr Tierney
In the first instance, counsel for Mr Tierney contended that the QOL proficiency assessment that Mr Tierney underwent from 14 May 2020 was not administrative action in respect of his employment. Counsel relied upon the decision of the Full Federal Court in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 (‘Reeve’), in which the Full Court stated at 473-4 and 483:
It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.
…
The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, 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.
…
In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer…matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees.
…
…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…That is, the action must be something different to the duties and incidents of that employment or, as s5B(2)(b) provided “the nature of, and particular tasks involved in, the employment”.

Counsel contended that the upskilling decision, and the steps taken to achieve that upskilling, was an operational decision that was imposed on all APS4 Service Officers and was not particular to Mr Tierney. Counsel submitted it was not specific to Mr Tierney but was the regulation of the normal incidences of an APS4’s employment. It was a decision about the activities or duties that Mr Tierney was to perform as an APS4 Service Officer.
Counsel contended the QOL proficiency assessment was not part of Mr Tierney’s annual proficiency assessment. Counsel submitted Mr Tierney had already undergone and passed his annual proficiency assessment in September 2019 and was therefore not due to undertake it again for another 12 months. Counsel submitted that the QOL proficiency assessment which Mr Tierney commenced in May 2020 was an additional requirement imposed on him as a result of the upskilling decision, and in that way was not a performance assessment and not, therefore, administrative action. Counsel submitted this was confirmed at the team meeting Mr Tierney attended on 24 October 2019 and again in discussions with Mr Tierney’s team leader, Mr So.
Counsel contended the QOL proficiency assessment which Mr Tierney commenced on 14 May 2020 was an attempt to upskill the Department’s APS4 workforce and was part and parcel of the duties that Mr Tierney, and all other APS4 Service Officers, were required to perform.
Counsel contended the QOL proficiency assessment which Mr Tierney commenced on 14 May 2020 was not “in relation to” Mr Tierney’s employment as it had nothing to do with the administration of the relationship of employer and employee as between Mr Tierney, in his capacity as employee, and the employer in its capacity as employer, but was rather imposed on all staff as a result of the upskilling decision.
In the alternative, Counsel contended the QOL proficiency assessment which Mr Tierney commenced on 14 May 2020 was administrative action taken in respect of his employment, but that it was not reasonable to take that administrative action having regard to Mr Tierney’s circumstances and it was not taken in a reasonable manner. However, Counsel continued to stress they disputed that the QOL proficiency assessment which Mr Tierney commenced on 14 May 2020 was “administrative action” “in relation to” his employment.
Counsel submitted that if the Tribunal determined the QOL proficiency assessment which Mr Tierney commenced on 14 May 2020 was “administrative action” “in relation to” his employment they contended it was not reasonable administrative action, as it was a form of micromanagement and required a level of proficiency/accuracy (95%) that was not reasonable to require in circumstances where human errors were inevitable. Counsel submitted that it was not reasonable because it was designed to rate a transaction as a fail unless all keying actions were correct and there was no mechanism in the assessment to recognise substantial compliance/accuracy.
If the Tribunal found that the QOL proficiency assessment itself was not unreasonable, Counsel for the Applicant contended in the alternative that it was not taken in a reasonable manner because it was unreasonable:
(a)to require Mr Tierney to continue to be subjected to the QOL proficiency assessment in circumstances where he had put the Department on notice as early as 14 May 2020 that it was causing him psychological injury;
(b)for Mr Tierney’s team leader, Mr So, to laugh at him when he expressed concern about the impact the process was having on his mental health;
(c)for Mr Tierney’s team leader to immediately attend at Mr Tierney‘s desk when he received a return, and advise Mr Tierney of the fact of the return in public and in front of Mr Tierney‘s colleagues;
(d)to not provide Mr Tierney with appropriate support during the QOL proficiency assessment process;
(e)that there had been no consultation with Mr Tierney about the changes to his duties and there was no evidence of any consideration given to employees’ needs and circumstances;
(f)that there was undisputed evidence that Mr Tierney discussed with Mr So that he didn't want to undertake the additional duties as he was nearing retirement, the process and role made him feel ill, and in those circumstances, he should not have been forced to undergo the assessment and take on additional duties; and
(g)Mr So’s own evidence had been that the QOL proficiency assessment was a stressful process, but the Agency took no action to alleviate that stress.
Counsel contended that the decision of Justice Grey in the matter of Reeve at 472 sounded a note of caution on how the Tribunal should approach the exclusion provisions of 5A(1) of the SRC Act:
In this respect, it is necessary to bear in mind the principle that is taken to have been established by Hart v Comcare [2005] FCAFC 16 (2005) 87 ALD 341 at [21]- [23]. That principle is that, however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury. It follows that the more broadly the exclusion is construed, the more destructive it becomes of the right to compensation afforded by the SRC Act. For instance, if the exclusion were to be construed so that any action that could be described as falling within the ordinary meaning of “administrative action”, taken by an employer, and commencing a chain of causation that resulted in injury to an employee of that employer, it is difficult to see that any employee would have any entitlement to compensation. Some examples surfaced in the course of argument on the appeal. It could be argued that an injury to an employee in falling down stairs at his or her workplace was the result of administrative action in directing that employee to work at that workplace. If a truck driver became injured as a result of a motor vehicle collision, it could be said that the injury was the result of the administrative action of directing the driver to drive a particular route on that day. In the present case, it could be said that Mr Reeve’s injury resulted from the administrative action of appointing him to manage the Mt Hawthorn branch of the CBA. Counsel for the CBA disclaimed any intention to argue for such an interpretation of the exclusion. They did not attempt to offer a way in which the words “as a result of” might be confined to a causal relationship of sufficient proximity to prevent the exclusion having that kind of operation, if the words “administrative action” were to be given a broad construction of the kind for which counsel for the CBA contended.
Counsel contended the decision in Reeve required that the administrative action taken by an employer must be in relation to the employee’s employment and their relationship with the employee. Counsel submitted that this was a very important part of the Reeve decision and assists Mr Tierney’s claim. Counsel contended the action undertaken in relation to Mr Tierney and every other APS4 Service Officer was not action in any way directed to Mr Tierney himself as it was of general application. The Agency was changing the duties of all APS4 Service Officers by introducing the requirement that they all undertake the QOL proficiency assessment. Counsel submitted that the change in duties were not the subject of the exclusion which Reeve affirms at 473:
The limits of the exclusion therefore appear to lie in the word “employment” and the word “administrative”. In the context of the exclusion, the word “employment” appears to be used in the sense of the “action or process of employing; the state of being employed” (Oxford English Dictionary) or “the act of employing” or “the state of being employed” (Macquarie Dictionary), rather than “that on which one is employed” (an alternative meaning given in both dictionaries). The history recounted in the Explanatory Memorandum to the amending Bill, and the identification in that Explanatory Memorandum of the mischief to which the amendment was directed, support this proposition. It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.
Counsel also pointed to the fact that the decision to change the APS4 Service Officers’ duties to introduce the quality online checker role for all, and not just those that volunteered, was communicated at a team meeting which everyone attended, not targeted at Mr Tierney specifically but of general application to all APS4 Service Officers.
Counsel submitted that the Tribunal would be aware of the often-used terms of administrative and operational action. Again, Counsel referred to the decision in Reeve and contended that operational action must relate to activities of the business in which an employee is employed. Counsel contended that this was important to Mr Tierney’s circumstances because the decision to increase the duties of APS4 Service Officers was clearly operational as it changed the way the business operated, and the duties staff were required to perform. Counsel referred to Reeve at 473-4:
The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, 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.
Counsel submitted that two subsections of the exclusion provision at s 5A(2) of the SRC Act may have application to Mr Tierney’s circumstances:
(a)First, subsection (a) “reasonable appraisal of employees’ performance”. Counsel submitted that this was not relevant to the QOL proficiency assessment which Mr Tierney commenced in May 2020 as he had already undertaken his performance appraisal in September 2019 and passed to the requisite level according to the Agency’s policy. Counsel submitted the same policy provides that a staff member is not required to undertake another proficiency assessment for 12 months and the evidence of both Mr Tierney and Mr So was that often 2-3 years lapsed between assessments. Additionally, Mr So’s evidence had been that Mr Tierney’s performance was good and that he had no problems with his performance. Counsel submitted the decision to subject Mr Tierney to a further QOL proficiency assessment was to certify him to do the additional duty of the quality online checker, not out of any concern about his performance. Counsel submitted that for Comcare to assert that this was a reasonable appraisal was to put a slant on the facts which wasn’t borne out by the evidence before the Tribunal.
(b)Second, subsection (b) “reasonable counselling action”. Counsel did not suggest that there was anything unreasonable about Mr So’s counselling session with Mr Tierney on 17 June 2020. However, Mr Tierney was already unwell by then as he had already engaged with the EAP on 5 June 2020, therefore there was no causation of his injury being suffered as a result of this counselling session. The record of the session indicates that Mr Tierney spoke about his psychological distress and what he thought were the causes. Counsel submitted that anything which occurred in a counselling session two weeks after Mr Tierney had already experienced his injury can't form the basis for an exclusion because the psychological damage was already done by then.
Counsel further contended that there was no evidence on which the Tribunal could make a finding that Mr Tierney’s failure to obtain a benefit, in the form of being exempted from having to complete the QOL proficiency assessment, was causative of his injury. Therefore, they contended that subsection 5A(2)(f) was not relevant.
Counsel for the Applicant contended that the other cases referred to by Comcare were not analogous to this matter.
In respect of Comcare v Drinkwater (2018) 260 FCR 150 (‘Drinkwater’), Counsel submitted that the mobility policy in respect of that decision applied to everyone, so it could not be considered administrative action based on the decision in Reeve. Counsel did concede that the Full Court disagreed with this interpretation of the exclusion provision at s 5A(2) of the SRC Act. Nevertheless, Counsel submitted the Tribunal could take comfort from the fact that there is a different factual scenario in this case. Counsel submitted that in this case the policy wasn't targeted at Mr Tierney but applied to everyone across the board. Counsel submitted the evidence before the Tribunal was that Mr Tierney was the fifth person in his team to undergo this process as all staff were rotating through the process and this fact supports the Applicant’s contention that this action was not targeted towards Mr Tierney but applied to his entire cohort and so it was not administrative action. Counsel submitted it was also relevant when considering Drinkwater that Mr Tierney had undergone testing in September 2019, he wasn't due for further testing until September 2020, and the facts demonstrated that there was no regard to his personal circumstances which is consistent with it being an across-the-board policy impacting all staff.
Counsel submitted in respect of Long v Comcare [2016] FCA 737 (‘Long’) that Ms Long, who was employed by Medicare, was subjected to proficiency assessments in much the same way as Mr Tierney. In Long, Counsel submitted the Court found the assessment itself was administrative action though it didn't consider whether it was reasonable, as Ms Long was undergoing her yearly proficiency assessment, so Counsel submitted they did not disagree with the Court’s conclusion that it was administrative action. Counsel submitted if Mr Tierney had made a claim for a mental injury suffered as result of his September 2019 QOL proficiency assessment, which was his yearly performance assessment, he would be in the same boat as Ms Long and he would be unsuccessful, provided the Agency demonstrated it was reasonable and taken in a reasonable manner. However, Counsel submitted Mr Tierney suffered his mental injury as result of the QOL proficiency assessment which occurred 7-8 months after his performance assessment and the genesis of that was operational change in duties. Counsel contended that this fact changed the flavour of the assessment Mr Tierney was required to undergo. Therefore, Counsel contended the matter of Long may seem determinative at a superficial level but is not because the facts are so different.
Comcare
Counsel for Comcare accepted and did not dispute that Mr Tierney suffers from an ailment as defined by the SRC Act, which was significantly contributed to by his employment with Services Australia as required by section 5B of the SRC Act.
Counsel submitted they did not dispute the diagnosis of major depressive disorder with anxious distress. However, Counsel contended that Comcare’s liability for Mr Tierney’s claimed psychological condition should be excluded on the basis that the stated employment contribution constituted reasonable administrative action undertaken in a reasonable manner, because:
(a)Mr Tierney’s account of the circumstances giving rise to his claimed psychological condition has been contradicted by the statement of Mr So;
(b)the Tribunal cannot be satisfied that Mr Tierney‘s allegations regarding the employment-related factors alleged to have contributed to his condition are accurate or correct, because Mr So has contradicted the Applicant’s account by reference to objective evidence including his coaching notes dated 17 June 2020; and
(c)the QOL proficiency assessment process and the associated feedback Mr Tierney received in respect of his performance under it from May 2020 constituted a reasonable appraisal of the employee’s performance and reasonable counselling action taken in respect of his employment.
Counsel noted that in the decision of the Reeve at 485 [70] the Full court had regard to the Explanatory Memorandum when the exclusion provision was introduced into the legislation:
The Explanatory Memorandum gave a number of reasons for the amendment that replaced the definition of injury in s 4(1) with what became s5A. One of these reasons were used by the Tribunal as an integral part of its construct of “reasonable administrative action”. This was the following explanation of the objectives of the amendment:
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.
Counsel for Comcare submitted that the exclusion applies to Mr Tierney in respect of s 5A(2)(a) of the SRC Act as the QOL proficiency assessment was a reasonable appraisal of Mr Tierney’s performance and it is not permissible to say that a performance appraisal can only apply to what occurred in September 2019. Counsel submitted that a performance appraisal doesn’t have to be routine or on an annual basis to fit the requirement of the exclusion.
Counsel submitted there was also scope for the exclusion in s 5A(2)(f) of anything reasonable done in connection with the employees’ failure to obtain benefit, namely Mr Tierney’s failure to retain the benefit of being exempted from having to undertake the QOL proficiency assessment.
Counsel for Comcare contended that essentially its case was that on 14 May 2020 Mr Tierney was subject to specific action by his employer directed to him. Counsel accepted that Mr Tierney expressed reservations about having to undertake the QOL proficiency assessment again, he had indicated he was due to retire soon, and that this process was allocated generally to all staff at APS4 level. Counsel submitted it could also be accepted that the general direction could be termed operational as the term had been utilised in the matter of Reeve. However, Counsel contended that from 14 May 2020, when Mr Tierney’s QOL proficiency assessment commenced and he did not meet the requisite high standard, it was no longer about all APS4 employees. The action from 14 May 2020 was an appraisal of Mr Tierney’s work alone, so therefore meets the definition of administrative action.
Counsel submitted the Applicant’s contention that the action was operational, relying on the determination in Reeve, which they submitted was the first case to raise that distinction between administrative and operational, did not hold up in this case. Counsel submitted that if there is specific action directed to an employee then that is clearly administrative action. Counsel submitted this case was clearly distinct from Reeve as the Court in that case found that there were a whole range of duties which Mr Reeve had to undertake, not specific to him alone, which resulted in his mental injury. Counsel submitted that paragraph 69 of Reeve was informative as it referred to the intention from parliament:
The intention that we have discerned from the Parliament’s use in s 5A(1) of “in respect of” is to provide a relational context for the administrative action yalen and the employee’s employment. It is to require that the action be specific to the employee’s work or job so that the exclusion can operate harmoniously with the preceding portion of s 5A(1) rather than as eviscerative of it…

Counsels submitted that the Reeve decision indicated the importance of the word “specific” when considering whether an action is specific to an employee. Counsel submitted the action from 14 May 2020 was clearly administrative as it was specific to Mr Tierney because it was an assessment of his performance.
Counsel pointed to the case of Drinkwater which they submitted found that if there is an action taken by an employer which is specific to a particular employee; such action falls specifically within the definition of administrative action. Counsel contended this was relevant in Mr Tierney’s case as the action from 14 May 2020 was a reasonable appraisal of his performance as envisaged by s 5A(2)(a) of the SRC Act.
Counsel contended the decision in Drinkwater, which considered the impact of a department mobility policy, made plain that the policy was operational in nature as it was a general piece of policy which applied to all employees. However, Counsel contended the Court found the situation changed when a specific decision was made to transfer Mr Drinkwater. Counsel took the Tribunal to the decision at 165-6 [69]-[73]:
Contrary to the submissions for Mr Drinkwater, the present case is not properly characterised as a case about the duties Mr Drinkwater all for his employer. These submissions involved a misreading of CBA v Reeve. Where Rares and Tracy JJ referred to the employee’s duties in CBA v Reeve [74], they drew a distinction between disciplinary action steps under an employee’s employment contract on the one hand and, on the other hand, defining or supervising the employee’s job or directing or her at all. The latter action was not, as their promise said, administrative action within the exclusion in S5A(1). Rather, this kind of action fell in what grade J referred to as operational action. All present case is not about departmental directions as to how Mr Drinkwater was to do his job in position or about his duties in that job; and it did not, for this reason, involve operational action falling outside the exclusion.
In the present case, the relevant action is about transferring Mr Drinkwater to a different post position from that which he held in his employer’s employment: see Tribunal’s recent at [36]. This was administered action taken with respect to Mr Drinkwater under section 25 PSA act…. It was actually took Mr Drinkwater’s employment ‘as a factum”, to use the language of Rares and Tracy JJ in CBA v Reeve [60]. …… This action was plainly taken in respect of Mr Drinkwater’s employment business action directed specifically to his employment taken in respect of his employment. A determination by that employer that the employee will move from his or her existing posts to a new posts in the employer’s employ involves administrative action specifically directed to that employee and specifically about that employee.
In the present case, the fact that this administrative action was in respect of Mr Drinkwater’s employment was highlighted by the decision-making process leading up to… The fact that these processes were pursued because they are part of the mobility policy does not alter the fact that they were expressly designed to enable consideration to give Mr Drinkwater’s personal circumstances and his personal professional preferences concerning his work areas. Mr Drinkwater did not contended the contrary.
Counsel contended the decision in Long is analogous to Mr Tierney’s claim and took the Tribunal to the decision in that matter at [13] where Justice Tracey observed:
The registry sought to ensure the maintenance of required standards by using the QC and QA processes. In evidence, accepted by the Tribunal, one of Ms Long’s supervisors explained how those processes worked as follows:
“2. In Medicare there are two quality checking procedures. One is known as Quality Assurance (QA) and the other one is Quality Control (QC). QC is generally performed the next day on a random selection of work for each employee. Three pieces of work would be selected daily for each processed batch and the results were reported to the National Audit Integrity Team. Note: QC is a National Audit Integrity operational requirement and is performed on all staff that have been deemed competent.
Counsel for Comcare submitted that clearly the action from 14 May 2020 was an appraisal of Mr Tierney’s work and performance, and the Tribunal could not disregard subsection 5A2(a) “a reasonable appraisal of the employee’s performance”.
Counsel also submitted that Mr Tierney was seeking to derive a benefit of being exempted from the QOL proficiency assessment. In this regard Counsel took the Tribunal to the matter of Trewin v Comcare (1998) 84 FCR 171. Counsel submitted that decision found that what constitutes a benefit encompass anything that might be good for you, and in that sense for Mr Tierney to be exempted from the quality online checker role or undertaking the QOL proficiency assessment would be a benefit to him.
Counsel further contended the action was reasonable and taken in a reasonable manner.
Counsel submitted the QOL proficiency assessment was reasonable action because:
(a)the work was part and parcel of Mr Tierney’s job description;
(b)whilst an employee’s duties may be subject to some negotiation, when an employee accepts a role, it is implicit that they are accepting the duties;
(c)clearly the QOL proficiency assessment was not desirable but that did not make it unreasonable;
(d)the Agency’s policy states that QOL proficiency assessments can be more frequent than every twelve months; and
(e)Mr So’s evidence reinforced that when dealing with people’s entitlement to government benefits, any mistake is unacceptable and can have consequences even when the error does not affect payability such that it is reasonable for the Agency to demand high standards of employees.
Counsel submitted the QOL proficiency assessment was undertaken in a reasonable manner because:
(a)the claim that Mr So laughed at Mr Tierney did not emerge in the evidence at hearing;
(b)the contention that it was unreasonable for Mr Tierney to be required to undertake the QOL proficiency assessment from 14 May 2020 because it was causing him psychological injury was simply not made out;
(c)Mr Tierney’s evidence was coloured because he was invested in his belief that the QOL proficiency assessment was unfair, however, evidence from Mr So was measured and accepted the process was stressful for all employees undertaking it;
(d)Mr So did not have the authority to exempt Mr Tierney from the QOL proficiency assessment;
(e)whilst Mr Tierney had advised Mr So that he was going to retire soon, Mr So did not seek approval to exempt Mr Tierney from the QOL proficiency assessment because Mr Tierney was not due to retire for another two years;
(f)Mr Tierney was offered assistance with the QOL proficiency assessment, but he was dismissive and did not take up any of the offers for assistance;
(g)Mr So reduced Mr Tierney’s workload such that he was only required to process one claim a day to assist him to reach the requisite 95% accuracy rate to pass the QOL proficiency assessment, but even this reduced workload still resulted in some errors; and
(h)Mr So attending at Mr Tierney’s desk after he received a return was Mr So being a supportive manager.
CONSIDERATION
Neither party sought to present medical arguments as Comcare has accepted that Mr Tierney was suffering from an ailment as defined by the SRC Act, which was significantly contributed to by his employment with Services Australia as required by section 5B of the SRC Act. However, the Respondent contended that liability for Mr Tierney’s claimed psychological condition should be excluded on the basis that the stated employment contribution constituted reasonable administrative action undertaken in a reasonable manner.
Disease
The Tribunal relied upon the consistent medical evidence of both Dr Abbas and Associate Professor Khalid who both diagnosed Mr Tierney as suffering from a major depressive disorder with anxious distress. This condition was sustained as a result of his employment with the Agency and, in particular, because of the QOL proficiency assessment process.
In considering the medical evidence, the Tribunal concludes that it is probable that, but for the requirement to undertake the QOL proficiency assessment, Mr Tierney’s “major depressive disorder with anxious distress” would not have arisen. The Tribunal is satisfied that Mr Tierney’s mental health condition was significantly contributed to by his employment, such that it is a “disease” within the terms of section 5B(1) of the SRC Act.
There seems to be no disagreement that Mr Tierney’s injury arose from his requirement to undertake the QOL proficiency assessment. The parties’ dispute was whether this requirement to undertake the QOL proficiency assessment was administrative or operational action. If it was administrative action then it is subject to the exclusion provisions of the SRC Act. If it was operational then the exclusion does not apply, as decided in Reeve. For the Tribunal to consider whether the matter was operational or administrative, it must determine when the injury arose. As with the case of Drinkwater, the Tribunal must consider if Mr Tierney’s injury arose when he was undertaking the QOL proficiency assessment, that is whether it was action taken by an employer which is specific to a particular employee.
At the outset there was a dispute between the parties about the date of Mr Tierney’s injury. Counsel for Mr Tierney’s asserted that the injury arose in 2019 and relied upon Associate Professor Khalid’s report of 14 December 2021 which opined the injury commenced in 2019 and worsened in 2020. Counsel for Comcare submitted that Associate Professor Khalid’s opinion was based on Mr Tierney’s self-reporting and a more appropriate assessment of the onset of his condition was the contemporaneous records of the treatment he had sought.
Counsel for Comcare submitted that the evidence establishes that Mr Tierney’s injury manifested by 3 July 2020 pursuant to s 7(4) of the SRC Act but even if the Tribunal determines that it occurred earlier, there are no records to demonstrate his injury arose prior to him commencing the QOL proficiency assessment. Counsel for Comcare relied upon the following evidence for this submission:
(a)On 14 May 2020 Mr Tierney commenced his QOL proficiency assessment;
(b)On 11 June 2020 a Service Support Officer (SSO), following a request from Mr So, emailed Mr Tierney to offer him support during the QOL proficiency assessment process. Mr Tierney responded in an email of the same date that it is “clearly an unhealthy process” and that he would prefer not to undertake the quality online checker duties;
(c)On 17 June 2020 Mr Tierney had his regular monthly coaching session with Mr So. Mr So’s records of this coaching session state “Paul is feeling stressed over the 100% checking that he’s presently undergoing” and “Paul feels that the system is flawed and the checking does not allow any room even for non-payment affecting errors”;
(d)On 3 July 2020 Mr Tierney attended his general practitioner, Dr Abbas, with the reason for the visit recorded as “adjustment disorder with anxious mood”. Dr Abbas recorded:
has been working in the same centrelink department for last 24 years
subject to quality process
very rigourous
started on 14th May 2020 -may continue for upto a year
not coping
making ill
stress level high cant sleep
cant eat
2-3 hours sleep at night
feels anxious, not depressed
always suffered from anxiety
3 hours yesterday meeting to find an error
referred this to worksafe
"i don consider it is safe process"
one error can be signifcant issue
cant function
every morning wake up with headache, feels sick and dont want to go in
process claim for aged pensions
19/20 -can be pass
(e)On 5 June and 8 July 2020 Mr Tierney attended EAP telephone counselling sessions. The notes of the 8 July 2020 session record:
Things have considerably escalated
Currently on personal leave and looking for treatment
Feels that the benchmarks were unreachable
Stress became unbearable…
The Tribunal finds, based upon the evidence, that Mr Tierney was clearly stressed by the prospect of having to undertake the QOL proficiency assessment. This was compounded by the fact that he had just completed his twelve-monthly proficiency assessment in September 2019, and he had anticipated that he would not have to undergo another proficiency assessment again due to his impending retirement in approximately 18 months’ time. The Tribunal relied upon Mr Tierney’s statement of 5 July 2021:
10. Before the QOL process started on 14 May 2020, I raised my concerns being that I had passed this procedure six months prior and felt a sense of dread immediately at having to be subjected to it again so soon. I asked if I could not just be exempted as I was looking to retire end of the following year. He dismissed my concerns stating words to the effect of “you have done this before so you can do it again” and “everyone has to do it.”
11. On 14 May 2020, my supervisor told me it was now my turn and I was now under 100% checking. I repeated my concerns however they were dismissed which made me feel ill with a sense of unease. He stressed to me that this time was different and was not performance related and tried to reassure me by asking me how many people had lost their jobs due to this process. I stated I was not aware of any but that means nothing.
12. The QOL process meant I could make one mistake out of the randomly selected 20 claims that I was doing. This made me feel very anxious. I was constantly anxious and I would wait for the outcome of the claims I was working on to check whether I made any mistakes.
13. Over the next two months I became more and more unwell doing the QOL checking as I was dreading being checked and constantly checking the outcome of my work. I was constantly feeling anxious and worthless as my supervisor was constantly at my desk and even laughed at me on one occasion when I had an activity returned.
Mr Tierney’s evidence was that he had advised his employer that he did not wish to do the quality online checker role or undergo the QOL proficiency assessment:
What did that role entail? – Quality online checker would be allocated activities that had been selected for checking, either by 2% checking or 100% checking so those people would run a program to check and provide feedback
Was that a role that interested you? – No, quite the opposite. The quality online checker was known as something awful and I wanted to avoid it at all costs.
Why? – Because it made me feel ill, it made everyone feel ill, I dreaded it, it was the worst thing possible that anyone had to go through.
Was there any consultation with the APS4 cohort prior to the decision being announced? – No, this was an operational decision.
After learning about the change of duties, did you have a discussion with Mr So about what you felt about this change? – Yes, at the conclusion of the meeting Mr So ended the meeting with his usual statement of if there’s any concerns please come discuss with me, so after the meeting at some point I spoke to him about my concerns, possibly at my next coaching session.
What was the concerns? – I raised my concerns that I didn’t want to go through this process again.
What process? – The 100% QOL checking process checking my accuracy to 100%, annual proficiency process that I didn’t want to go through again. I didn’t want to be a QOL checker. I outlined my reasons why that I was dreading it and didn’t want any part of it really and could I be exempted because I was looking at retirement a year away and possibly sooner because I had years leave up my sleeve but he listened to my concerns and he dismissed them.
What did he say in response? – He gave the standard Centrelink line, why they needed everyone do it and also I had done it many times before, I’d been there 20 years, if I had done it so many times why not one more time and that was pretty much it.
The Tribunal notes that whilst Mr Tierney had expressed dread at the prospect of undertaking the QOL proficiency assessment, he did not seek treatment until 5 June 2020 when he first utilised a telephone counselling session through the EAP. The notes of this session record that Mr Tierney was feeling very stressed by the process, the notes state:
Cx stated that he was feeling stressed at work due to process he is made to undergo re quality of work an productivity
-states it is not possible for him to reach benchmark
-states it is stressful process and TL is not understanding
-feels nervous and ill when submitting tasks as worries they will not meet benchmark (19/20) and will eb returned for him to redo
-is wanting to leave but has 18mths until he is able to retire
-other option he has identified is to ‘soldier on’ but worries what this will mean for his health
The Tribunal notes that numerous decisions have found that a literal reading of s 7(4) of the SRC Act can lead to unjust outcomes and instead have found the date an employee seeks medical treatment is a good starting point, particularly if there is a gradual development of the disease. The Tribunal, based upon the evidence, finds that Mr Tierney’s injury arose as a direct consequence of undertaking the QOL proficiency assessment. The Tribunal determines that 14 May 2020 was the date of his injury which is confirmed when he first sought assistance for his mental health condition with the EAP on 5 June 2020, he decided to solider on until he no longer could, at which time he attended his general practitioner on 3 July 2020 and ceasing work shortly after.
As the Tribunal has determined the injury arose from 14 May 2020 when Mr Tierney commenced his QOL proficiency assessment, it could be said that the action was administrative and not operational as at this point in time it pertained to Mr Tierney’s work performance and was no longer a generalised direction to all APS4 Service Officers.
The Tribunal finds that Mr Tierney’s situation is analogous to the cases of Drinkwater and Long where a policy applicable to all staff (in this case the requirement for all staff to undertake a QOL proficiency assessment) becomes an individual assessment of performance (as Mr Tierney was required to undergo an assessment of 100% of his work). The action, to require all APS4 Service Officers to undertake a QOL proficiency assessment to check their ability to perform all duties in their position description, in particular the quality online checker role, was no longer an operational function when Mr Tierney undertook his QOL proficiency assessment.
The Tribunal notes the determination in Reeve at 483-4 also draws a distinction between operational and administrative action which assisted the Tribunal in forming the view the QOL proficiency assessment was specific to Mr Tierney:
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.
…
Here, Mr Reeve’s employment included the tasks of attending the teleconferences and dealing with the consequences, results and outcomes of the customer surveys. Thus, the teleconferences, customer surveys and their uses were not administrative action taken in respect of his employment – they were part and parcel of his employment.
…
The issue that now arises is whether what was done was done in connection with (s 5A(2)(e)) reasonable administrative action that consisted of a reasonable appraisal (s 5A(2)(a)). The teleconferences and use in them of the customer surveys were actions not done in connection with any appraisal of the employee’s performance; they were done as part of the ordinary course of Mr Reeve’s employment and in appraising the performance of his branch.
The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1), involves the formation of a judgment as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, common sense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee’s employment.

The Tribunal finds that the action which led to Mr Tierney’s mental health condition arose as an action taken in respect of his employment, was about his performance and not a general policy applying to all APS4 Service Officers. The Tribunal also relied upon the determination in Drinkwater at 166 [72]-[73]:
A major difficulty with the argument advanced for Mr Drinkwater was that it failed to take account of the fact that the factual matrix described by the tribunal disclosed more than one administrative action. When the department determined to reinstate the mobility policy in 2013, it made an administrative decision about the implementation of the mobility policy. This decision did not constitute administrative action within the exclusion in s 5A(1), including because it was not action “in respect of” any particular employee’s employment. This was not, however, the administrative action that was relevant to Mr Drinkwater’s compensation claim. As we have seen, Mr Drinkwater’s case was that his disorder devolved in response to the action to transfer him from his post at Sydney Airport to a different post in the Customs House. The action to transfer him from his existing post to a new post was therefore the administrative action relevant to a claim for compensation…. The earlier Departmental decision to implement the mobility policy was not the relevant action because it did not give rise to the disorder for which he sought compensation.
Furthermore, the fact that the decision to transfer Mr Drinkwater from his post at Sydney Airport to a different one in the Customs House would not have been made but for the Department’s decision to implement the mobility policy does not alter the fact that the administrative action to transfer him was made in respect of his employment. In the context of employment governed by the PS Act, it will frequently be the case that administrative action taken in respect of particular employee’s employment will be taken under, or in furtherance of, a policy that employer has determined is applicable to all or some of the employees in its employer.
The Tribunal also relied upon the determination in Long at [34]-[35], which acknowledged that a program to ensure the accuracy of the work of an employee would be considered administrative for the pursues of the exclusion in s 5A of the SRC Act:
I find that they actually embarked upon a particular program and a program particular to Ms Long; that is, rather than putting additional pressure on her by making her undertake the PIP, which would have led to a dismissal should her performance not be corrected or improved to an appropriate rate, they, in fact, place[d] her on a targeted quality assurance program in an attempt to get her accuracy up to the appropriate rate. It is a fine line to draw between the operational and administrative actions, but because this was a program specifically designed for Ms Long and particular to her, I find that it was, in fact, an administrative action and not an operational action.
I note that I would also find it was an administrative action if it was a QA process undertaken in the normal course of events as a result of an unacceptable level [of] inaccuracy being obtained by Ms Long. In other words, I find that the actions were done in respect of the employment relationship that Ms Long had with the Commonwealth and were of such a nature to be administrative rather than operational actions, and hence they are excluded from the definition of injury unless the action taken was not reasonable or was unreasonably taken
REASONABLE ADMINISTRATIVE ACTION
As the Tribunal has determined the action was administrative, it must next determine if it was “reasonable administrative action taken in a reasonable manner” in respect of Mr Tierney’s employment.
Was the administrative action reasonable?
The Explanatory Memorandum to the introduction to the changes to the SRC Act which were made by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2006 clearly identified that an objective of the exclusionary provisions in s 5A 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. The Tribunal can think of no more fundamental legitimate human resource management action than an assessment of an employee’s performance. Contrary to Mr Tierney’s counsel’s view, the Tribunal does not consider that the QOL proficiency assessment which Mr Tierney commenced in May 2020 was not a legitimate performance appraisal just because it did not form part of his yearly review. It would seem to the Tribunal that good human resource management would institute ongoing assessments of employees’ performance. Indeed, one of Mr So’s duties as a team leader was to conduct monthly coaching sessions, which Counsel for Mr Tierney did not take issue with.
The Tribunal finds that the QOL proficiency assessment was a reasonable administrative action taken to ensure that staff had the requisite skills at an adequate standard to undertake their important role of processing social security claims.
The Tribunal finds, based on all the evidenced before it, that the QOL proficiency assessment was considered a stressful exercise by all who had to undertake it. However, the Tribunal does not consider that this means the QOL proficiency assessment was an unreasonable action taken by the Agency. The Tribunal finds the frank evidence of Mr So that the QOL proficiency assessment is stressful but necessary, demonstrates that it was a requirement for employees undertaking an important role:
You’re got, on your evidence, all your team members saying it was stressful and yet you still, as a Department, were pressing on without regard to this staff feedback? – I have been a Service Officer myself, I have been through this and it’s stressful but it’s a way of checks and balances, we have to make sure we are doing the work accurately and if we can’t maintain that then why are we doing this job.
This accuracy given precedence over employee’s health and wellbeing? – That’s why you have to be fit for the role. I’m sorry I just don’t agree to what you’re trying to say here, you have to be fit for the role. If you can’t do your work accurately or if it’s too stressful, then maybe it’s not the role for you.
The Tribunal was impressed by the candour of Mr Tierney’s evidence as well as his knowledge and commitment to his role as a claims processing officer. The Tribunal considers that Mr Tierney’s evidence reinforced the view that the QOL proficiency assessment was a necessary process but understands that he has always maintained the process was flawed and undertaken in a rigorous and unreasonable fashion. Additionally, Mr Tierney’s evidence was clearly coloured by his frustration and understandable reluctance to undertake another QOL proficiency assessment prior to his retirement, particularly as it was to acquire skills to undertake duties which he had no desire to perform.
You weren’t finding the job stressful but found this checking stressful, was it exacerbating the difficulty? – The checking was the worst thing in the job, everyone knew that and when someone’s going through it, everyone would be very careful around that person because we know what they were going through and feel for them, so stringent.
Technically it’s just checking that you were doing your job wasn’t it? – It’s being put under an absolute microscope, it’s almost forensic the way they go through everything and if you think of the number of key strokes in one activity, it could be hundreds, some are very complicated with lots of bank accounts, investments and you get one thing wrong, dates complicated, everything must be in the absolute correct order and almost like its being audited so it feels very, no one enjoys it, they weren’t meant to.
There is a consequence of getting an error isn’t there? – Yes I have never disputed that the process was necessary or important but it shouldn’t give the employer a right to do it in such a rigorous unreasonable fashion is my opinion.
So checking was done by a computer or by a person? – Done by a person, a person runs through a program and it asks them questions, is it correct whatever and they answer yes or no and if answer no, it defaults to the end and activity is returned and can’t be overridden
Were any of your returns gave insight or assist you to do your job better – Not really, my returns were usually for keying errors or concentration. You’re referring to errors of knowledge, I didn’t have those, no I didn’t have those. I’d been there so long I’d seen it all, the experienced people are leaving and new brought in and they don’t have the knowledge so all making errors.
Based on all the evidence before it, the Tribunal finds that the QOL proficiency assessment was reasonable administrative action as it was a reasonable appraisal of Mr Tierney’s performance.
Was the reasonable administrative action ‘taken in a reasonable manner’?
To objectively assess whether the administrative actions were undertaken in a reasonable manner, they must be assessed in the context and circumstances of the QOL proficiency assessment from 14 May 2020. In Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47-48 Lander J found:
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.
And in Comcare v Stewart [2019] FCA 365 at [70] the Hon J Robertson posed the following questions:
Did the Tribunal in substance identify the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacted upon the worker, 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? Did the Tribunal in substance decide whether what it assumed for this purpose to be reasonable administrative action was taken in a reasonable manner by approaching it as a question of objective fact, to be determined against the ordinary standards of reasonable employers in all the circumstances of the case?
The Tribunal found the evidence about the genesis of the action to require all APS4 Service Officers to perform the roles of quality online checker and peer support officer equivocal and formed the impression that the change had not been adequately canvassed with the Agency’s employees. It was also not clear to the Tribunal if the needs and preferences of employees had been considered as required by the Agency’s enterprise agreement. However, the Tribunal notes that all parties agreed that the quality online checker and peer support duties did form part of the APS4 Service Officer position description but that prior to the meeting in 2019 these roles had been undertaken on a voluntary basis.
The Tribunal considers that Mr So’s evidence reinforced the notion that staff across the board were not happy with having to undergo the additional QOL proficiency assessment, but nevertheless staff completed the task, and no Agency-wide objection was made to the change introduced at the October 2019 meeting.
How popular was this work with the staff? – Not popular at all.
Can you explain why? – Because of the process itself. To be an accredited checker you have to undergo 100% checking and that itself can cause stress to a person because normally work is only checked at a 2% rate so that’s hardly anything, then suddenly in position where every work is checked is stressful to even the most skilled and experienced officers.
Whilst the background to the change did not seem ideal, the Tribunal considers that the action was undertaken in a reasonable manner. There is an expectation that staff can perform all of the requirements of their position description to the standard required to fulfill their role. The Tribunal appreciated Mr Tierney’s considered assessment of the QOL proficiency assessment process, namely that it was flawed because even minor keying errors were considered a fail and returned, as Mr Tierney explained in his statement of 5 July 2021:
8. My concern with the Quality Control Program is that it does not take into consideration human error. Under the program, staff are required to maintain an accuracy level of 95%. This 95% accuracy is reviewed annually however in reality it may be reviewed every 2 years or even later. Staff with a level under 95% are put on 100% checking in order to increase the sampling pool to achieve 95%. An activity can be comprised of multiple keystrokes and multiple decisions. Under the Quality Control program, one error, no matter how significant, will rate the entire activity as a fail and zero percent. Errors can be trivial to the extent they could be rectified later with no consequences. The Quality Control Program was affecting my mental health as no allowance is made for human error.
…
16. My mental health was affected by the stress that I was experiencing in relation to the expectation to perform according to the QOL checking standards. I was constantly worried about failure as I feel the process is flawed. The QOL checking process affected my confidence, ability to focus, concentration, and I felt that my supervisor was not taking my concern, which I told him of before starting the QOL checking process, seriously. I was having trouble sleeping, I was feeling anxious, and I was feeling physically sick from the anxiety
Mr Tierney’s evidence at the hearing:
Can you explain what a return is? – A return is an error, any error basically, the checkers are using a program to check the activities and program defaults to return over any error.
How many errors did there need to be to constitute a fail and be returned? – One.
…
Was the meeting you described the only time you expressed your concerns to Mr So? – No, I expressed them to him a number of times, the situation was deteriorating and I raised it with him a number of times.
Can you explain what you mean by deteriorating? – I was getting some returns and I felt some of them were very trivial, one example was I decided to dispute even though disputing it made me feel more ill but decided I need to stand up for myself.
However, the Tribunal finds Mr So’s evidence more compelling that there is a need to set such high standards. Mr So’s evidence at the hearing:
Why is that so in your work, why are such high standards needed? – It’s definitely the corner stone level of quality, it’s important we maintain certain standard of accuracy because as you would know Centrelink is administering payments on behalf of the government so we must ensure payments we make are correct and the rates are correct and based on correct decision making on the legislation. So we have to make sure our work is accurate and based on legislation and we have that certain level of accuracy we have to meet.
What do you say to the proposition that the standards which are set are impossible to attain? – It is not impossible because we do have the majority of service officers meeting the standard so it’s not impossible.
…
Did he [Mr Tierney] elaborate any further on the level of stress or how he was feeling? – Not initially, only when he started failing the checking that he started to say it’s really stressing him out but as I said it’s a stressful process regardless of whether you’re passing or not.
Had there been other staff subject to the same proficiency assessment before he was asked to undergo the process? – Yes, yes so when we started this campaign to get every APS4 be QOL checkers, we had to do it in a staggered fashion because it’s labour intensive and slows down our ability to process claims because every piece of work is getting checked and by the time we got around to Mr Tierney undergoing the process, I had already had four members of my team go through the process successfully.
…
the level of quality standards is quite high so his argument was the error he committed is not payment effecting so he should have passed but we go further than that, any inaccuracy in record could impact future payments or inaccurate records, important that we maintain that level of accuracy.
As to whether the reasonable administrative action of the Agency appraising Mr Tierney’s performance by requiring him to complete the QOL proficiency assessment was undertaken in a reasonable manner, the Tribunal accepts that given Mr Tierney’s preconceptions of the process, he was predisposed to view Mr So’s and the Agency’s actions in a negative light. As in life in general, perception is everything. Mr Tierney’s preconceptions were considered in Associate Professors Khalid’s original and supplementary reports where he opined to different views of how Mr Tierney’s condition arose:
In his report of 14 December 2021 Associate Professor Khalid opined:
Mr Tierney’s condition arose as a result of over scrutiny of his work by his supervisor. He also felt targeted at his workplace. He claimed that his supervisor used to come and stare at him, telling him that he had a return. While there may have been issues with his performance with the online quality checking process, this could have been done in a supportive way with formal training provided rather than him feeling ridiculed and being subjected to the performance management process
In his supplementary report of 16 February 2022 Associate Professor Khalid opined:
Any other comment or opinion you have in respect of Mr Tierney’s workers’ compensation claim, condition or capacity, or Mr So’s statement and any of the other enclosed documents.
Mr So’s statement appears to be genuine and he has detailed that he tried to provide support to Mr Tierney, which he declined.
It does alter my opinion that Mr Tierney’s condition arose as a result of his perception of being scrutinised at his work by his supervisor, not necessarily meaning that Mr So was harassing him. Mr Tierney had felt stressed due to the assessment process and not necessarily due to the alleged conduct of Mr So.
The Tribunal does not consider that it was unreasonable for the Agency to require Mr Tierney to continue to be subjected to the QOL proficiency assessment from 14 May 2020 as it was unclear when Mr Tierney advised Mr So or the Agency that the process was causing him psychological injury. The Tribunal finds the evidence demonstrates that Mr So sought to ensure Mr Tierney had his support, and the support of the SSO. The evidence demonstrates that Mr Tierney repeatedly declined these offers of help. It was not until Mr Tierney went on sick leave that there was a record of the level of trauma the process was causing Mr Tierney. Mr So’s evidence indicates all employees agreed the process was stressful:
He [Mr Tierney] said that soon after learning about it [the change in APS Service Officer’s duties to include the quality online checker role] he told you he really didn’t want to do the role, do you remember that? – Well at the same time he would have said he knew he had to do it anyway.
Do you recall him saying he didn’t want to do it? – He probably said that but 80% of people would have said that.
Do you recall him saying he didn’t want to check others’ work? – So did a lot of others, these are common sentiments, the process is stressful, I don’t want to check others work.
Did he tell you he didn’t want to be responsible for making others miserable? – No but I remember him saying that when he had a return he said he is saving the next person from this misery, because we were staggering people doing this so until he completed his I can’t move onto the next person.

The Tribunal does not consider that it was unreasonable for the Agency to require Mr Tierney to continue to be subjected to the QOL proficiency assessment when he had expressed his desire to be exempt because he was nearing retirement. At the time of commencing his QOL proficiency assessment in 2020, Mr Tierney had around 18 months to go before he turned 55 and could retire such that it was completely reasonable for the Agency to require hm to perform his work to the requisite standard during the remaining 18-month period. Mr Tierney also told the Tribunal that he could have utilised his accrued leave to avoid the QOL proficiency assessment but did not do so and he expressed regret at not taking this option:
Mr T has said that he had a conversation with you asking that he be exempted from the QOL checking role, do you remember him raising that? – I remember him making a statement saying he would be retiring when he turned 55 and I said well you’re turning 55 still a long way away and I wouldn’t have given exemption for that amount of time left. I had one other team member who only had 6 months to go and they still went through the process.
…
If someone said they felt ill at the prospect of performing a role, would you take that into account? – That is one possibility but its more about, it’s part of your role of APS4, are you not up to performing your role? It may well be that you need to find another job or another role, not necessarily an exemption.
The Tribunal finds the accusation that Mr So had laughed at Mr Tierney when he had an activity returned was not made out. This matter was not raised by Mr Tierney’s counsel at the hearing. The Tribunal considers that Mr Tierney’s preconceived ideas about the process could account for this claim. The Tribunal found Mr So’s evidence to be reliable:
I never laughed at him and I stand by my statement. I sincerely thought we had a good working relationship, that’s why I just took his sarcastic comments like about saving next person from misery, I thought he was being funny and I thought we had a cordial, if not friendly, relationship.
The Tribunal finds Mr So appearing at Mr Tierney’s desk when he had received a return did not demonstrate that the administrative action had been taken in an unreasonable manner. Again, the Tribunal considers that Mr Tierney’s preconceived ideas of the process could account for this claim. The Tribunal considers the action of Mr So were of a manager concerned for their staff member and found Mr So’s evidence to be reliable. Mr So’s evidence to the hearing:
He gave evidence that after he got a return you went to his desk and said you have a return, do you remember this? – Yes.
Do you remember when that occurred? – No, I remember doing that which I did with every other service officer going through the process to update them on the outcome because I want them to know straight away so they can quickly learn from it, it’s my way of providing support.
They’re able to check themselves aren’t they? – Well when they check they don’t always pick it up as soon as it happens.
What sort of delay was normal between receiving return and checking it? – Depends on the person on how quickly they are checking results. Some people don’t check until the end of the day so I update them to save them from making the same error in the next application if they learn straight away of that return.
Did you say anything else to Mr Tierney at his desk? – I don’t think I did, I didn’t get a chance because he was dismissive.
So you weren’t going to say ‘you have a return, can I offer some support’? – I was going to let him know and get him to go through the feedback and ask him if he agreed to learn from it and if not raise it for review and do it quickly.
But you didn’t do any of that – No because I didn’t get a chance to because he was very dismissive.
You gave evidence that you’re aware this process is stressful, do you accept that you attending at a team members desk to announce they got a return only adds to that stress? – As I said, I was doing it as a means of support. I did that with others and it’s a way of alerting them to a return because someone might not check until the end of the day so if I tell them about the return and error, I save them from making the same error between then and when they look up the returns themselves.
Do you accept that with the best of intentions that he may have perceived that as you being overkill when he already knew he had a return? – Well possibly, obviously he has taken it that way.
The Tribunal considers that the Agency’s administrative action of implementing performance management of its employees, whilst stressful, was designed to ensure the high level of performance required by the Agency. Whilst it was unpleasant, the QOL proficiency assessment was not so onerous as to be unacceptable as the majority of staff completed the assessment successfully, as indeed Mr Tierney had done in September 2019. Mr Tierney’s preconceptions have led him to perceive Mr So’s and the Agency’s actions in a negative light. However, the Tribunal considers Mr So’s evidence demonstrates that the appraisal process was carried out in a reasonable manner and support was offered to Mr Tierney to assist him complete it.
The Tribunal therefore concludes that the reasonable administrative action of the Agency appraising Mr Tierney’s performance by requiring him to complete his QOL proficiency assessment was undertaken in a reasonable manner.
CONCLUSION
The Tribunal, having considered all the evidence before it, determines that Mr Tierney is excluded from any form of compensation under the SRC Act as it has determined the action of requiring him undertake the QOL proficiency assessment form 14 May 2020 was a reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2) of the Act.
DECISION
Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review dated 22 December 2020 to reject Mr Tierney’s claim.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member

.....................[sgd]....................................
Associate
Dated: 5 April 2023

Date of hearing: 1-3 February 2023

Counsel for the Applicant: Ms Kim Brady

Solicitors for the Respondent: Slater and Gordon Lawyers

Counsel for the Respondent: Mr Charles Clark

Solicitors for the Respondent: HBA Legal

Date	Event
9/10/1996	Commenced employment with Department of Social Security now known as Services Australia
24/10/2019	Team Meeting held to advise of the plan to have every APS4 trained and accredited as Technical Peer Support Officers and Quality on Line (QOL) Checkers.
03/01/2020	Mr Tierney completed the self-paced learning packages required as part of the Quality on Line Checker (QOL) certification. · QOL Checker Accreditation course code CLK01123s · QOL Skills Verification course code CLK01123t
10/01/2020	Mr Tierney completed further self-paced learning for QOL checker certification · Quality Management Officer course code CLK00874s · QMA Skills verification course code CLK00875t
14/05/2020	Mr Tierney commenced the proficiency assessment process
14/05/2020	Non New Claim (NNCL) activity completed by Mr Tierney returned due to an error
28/05/2020	New Claim (NCL) Activity completed by Mr Tierney returned to him due to an error
04/06/2020	NCL activity completed by Mr Tierney returned to him due to an error
05/06/2020	NCL activity completed by Mr Tierney returned to him due to an error
11/06/2020	Service Support Officer (SSO) emailed Mr Tierney providing analysis of his progress and an offer of support. Mr Tierney replied to SSO’s email declining the offer of support.
17/06/2020	Mr Tierney participated in a scheduled coaching session with his Team Leader, Mr So. Mr Tierney expressed that he was feeling stressed about the checking process and thought it was flawed as it would fail activities for mistakes Mr Tierney described as petty or not affecting the overall outcome. Mr Tierney was offered supports from the Technical Support Officer and EAP
30/06/2020	NCL activity returned to Mr Tierney due to an error
01/07/2020	In his statement Mr So stated that as of this date Mr Tierney’s results showed that he achieved intermediate correctness (85% - 94%) which was short of the required 95% correctness required for QOL certification. He was given the option to reduce the sampling rate to 25% (i.e. have less activities checked). As he had not achieved the required proficiency level, the QOL Checker certification process is currently on hold
02/07/2020	Date Mr Tierney specified in his claim form that he first noticed symptoms of his claimed condition. In his statement Mr Tierney stated that he chose this date as it was the date of the last ‘return’ or fail from the QOL process which he states caused his injury
03/07/2020 to 17/07/2020	Personal leave
20/07/2020 to 31/07/2020	Personal leave
21/07/2020	Mr So contacted HR Support for assistance to support Mr Tierney due to his extended period of personal leave
29/07/2020	Mr So made contact via phone with Mr Tierney to check in with him, discuss his ability to return to work and to offer him the support of a rehabilitation case manager (RCM) from HR Support
03/08/2020 to 14/08/2020	Personal leave
04/08/2020	Mr Tierney provided consent via email for the agency to send a questionnaire to his treating doctor
05/08/2020	Work capacity letter emailed to Mr Tierney’s doctor
17/08/2020	Mr Tierney returned to work – returned to full duties and full hours
24/08/2020	Personal leave, no medical certificate provided
31/08/2020	Mr Tierney contacted to enquire if HR Support RCM had received the report from Dr Abbas
01/09/2020	Personal leave, no medical certificate provided
02/09/2020	Doctors report received dated 01/09/2020 stating Mr Tierney is fit to work 3 days per week, 7.5 hrs per day from 7 September 2020 to 5 October 2020
03/09/2020	Mr Tierney lodged an Injury report for a psychological injury and specifying a date of injury of 02/07/2020
04/09/2020	Online claim for compensation received for psychological injury.
07/09/2020 to 05/10/2020	Mr Tierney commenced working 3 days per week, 7.5 hrs per day as recommended by treating doctor.
17/09/2020 to 24/09/2020	Parental leave
05/10/2020	Capacity for work certificate provided

Date of hearing:	1-3 February 2023
Counsel for the Applicant:	Ms Kim Brady
Solicitors for the Respondent:	Slater and Gordon Lawyers
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Respondent:	HBA Legal