Tomich and Comcare (Compensation)

Tomich and Comcare (Compensation) [2017] AATA 992 (26 June 2017)
Division:GENERAL DIVISION
File Number(s): 2016/1658
Re:Jacqueline Tomich
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries

Dr Peter Wilkins, Member
Date:26 June 2017
Place:Canberra

The reviewable decision of 3 February 2016 is affirmed.
..........................[sgd]..............................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Commonwealth employee – senior position – workplace interpersonal issues - adjustment reaction with mixed emotional features - whether “aggravation” of underlying condition – new condition established - whether condition contributed to by employment – causal link between conditions and administrative actions - whether reasonable administrative action – whether administrative action was reasonable and taken in a reasonable manner in respect of the employee's employment - test objective, not subjective – administrative action reasonable – reasonable administrative action taken in a reasonable manner – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v Martin (2016) 91 ALJR 29
Comcare v Martinez (No2) 302 ALR 608
Commonwealth Bank of Australia v Reeve 199 FCR 463
REASONS FOR DECISION
Deputy President Gary Humphries and Dr Peter Wilkins, Member
26 June 2017
BACKGROUND

Ms Jacqueline Tomich has been a Commonwealth public servant since 2005, initially with the Department of Defence and presently with the Department of Human Services (the Department). After commencing at the latter in 2011 she experienced interpersonal issues in the workplace and, on 8 September 2015, made a claim for workers compensation for an adjustment disorder, with the stated date of injury of 29 October 2013. Liability for a condition of adjustment reaction with mixed emotional features was accepted by Comcare on 30 October 2015. This determination accepted liability to pay compensation to Ms Tomich for the period 13 June 2013 to 13 August 2015.
In March 2015 Ms Tomich began work in the Service Integration and Digital Operations Branch of the Department as an EL 2 Director. Shortly afterwards Ms Patricia Woolley also commenced with the branch as its National Manager, and Ms Tomich’s superior. Ms Woolley was based in Brisbane and Ms Tomich in Canberra. Ms Tomich told the Tribunal that there was mounting tension over the ensuing months between her and Ms Woolley, culminating in an email exchange on 13 August 2015 in which Ms Woolley criticised Ms Tomich for failing to advise her of intended leave. A few days later Ms Tomich’s doctor certified her as unfit for work, and she began a period of extended leave.
On 2 November 2015, at the suggestion of a Comcare delegate, Ms Tomich lodged a claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for major depressive disorder, single episode. In the claim she recorded 13 August 2015 as the date she first noticed her symptoms/injury. On 2 December 2015 Comcare denied liability for this condition on the basis that it had been suffered as a result of reasonable administrative action taken in accordance with s 5A of the Act.
Following a request for reconsideration, the decision to refuse liability was upheld on 3 February 2016. On 3 April 2016 Ms Tomich applied to this Tribunal for merits review of that decision.
THE RELEVANT STATUTORY PROVISIONS
Section 14 of the Act entitles an employee to compensation in respect of an injury resulting in incapacity or impairment. Injury is defined in s 5A:
(1) In this Act:
"injury " means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee's performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c)a reasonable suspension action in respect of the employee's employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
The term “disease” is defined in s 5B(1) as:
(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.
THE ISSUES BEFORE THE TRIBUNAL
There was agreement between the parties that Ms Tomich suffers from a disease, or an aggravation of a disease, being an ailment that was contributed to, to a significant degree, by her employment with the Commonwealth, pursuant to s 5B(1). There was also agreement that Ms Tomich was suffering from that disease, a psychological ailment, on or about 13 August 2015. There was however disagreement as to whether that ailment was an expression of her accepted condition of adjustment reaction with mixed emotional features, or whether it was a new and separate injury. Notwithstanding the date referred to in her workers compensation claim of 2 November 2015, the date on which she first noticed her injury, Ms Tomich submitted that the condition she suffered from in August 2015 was the same injury for which Comcare accepted liability on 30 October 2015. Comcare, in turn, submitted that there was a fresh injury which occurred on 13 August 2015, the date of the email exchange regarding Ms Tomich’s leave.
If the ailment was merely the manifestation of her accepted condition, no question of liability arises; compensation will flow to Ms Tomich, subject to the provisions of the Act. On the premise that the Tribunal finds it was a separate injury – that is, a disease or an aggravation of a disease – liability for it must be established afresh under s 14. It was put by Comcare that liability is excluded by virtue of the exemption in s 5A(1), that is, the injury was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.
The Tribunal must therefore determine, firstly, whether Ms Tomich suffered a fresh injury on or about 13 August 2015, or whether her condition at that time was merely a manifestation of her earlier, accepted condition. If it determines that it was in fact a fresh injury (which could include an aggravation of her accepted condition), then it must determine, secondly, whether liability for that fresh injury is excluded because it was suffered as a result of reasonable administrative action.
An earlier contention by Comcare, that its liability for compensation was excluded because Ms Tomich had made a wilful and false representation that she did not suffer, or had not previously suffered, from that disease, pursuant to s 7(7), was not pursued at the hearing.
THE EVIDENCE
The events of June – August 2015
For the purposes of this application an examination of the issues giving rise to the condition of adjustment reaction with mixed emotional features, for which Comcare accepted liability on 30 October 2015, is unnecessary. Of greater relevance is the period from March 2015 when Ms Tomich began work in the Service Integration and Digital Operations Branch. She put to the Tribunal considerable evidence regarding what she described as the working environment at DHS under Ms Woolley’s management. She asserted that Ms Woolley has repeatedly demonstrated contempt toward her. The focus of the Tribunal’s attention here is therefore on the period March – August 2015, when Ms Woolley and Ms Tomich were working in the same branch. Written statements and oral evidence were taken from Ms Tomich and Ms Woolley.
Ms Tomich’s relationship with her branch
Ms Tomich told the Tribunal that she felt marginalised in the branch. There were key meetings to which Ms Tomich was not invited or included. Emails evidencing one example of this were tendered by Ms Tomich. Ms Woolley and another director would sometimes present work Ms Tomich had done to others without giving Ms Tomich credit for it. In August 2015 Ms Tomich enquired about the whereabouts of her 10 year service certificate and pin. It was mailed to her but when it arrived she saw that it:
…was addressed incompletely – I did not feel like I was a valued employee… I [had been] invited to opt to have the certificate and pin posted or presented. I was very much looking forward to that milestone and opted to have this presented. When it arrive [sic] in the post, incompletely addressed, I felt very undervalued.
In a statement dated 20 November 2015, Ms Woolley referred to an email exchange between her executive assistant and Ms Tomich in which the latter was offered the choice of personal presentation of the certificate and pin or having them sent by post. Ms Tomich elected to have them sent by post. The emails in question were attached to Ms Woolley’s statement. In her oral evidence, Ms Woolley could not recall having presented Ms Tomich’s work without attribution. She said she recalled one work meeting to which Ms Tomich should have been invited but was not. She said she arranged for Ms Tomich to be included once the omission had been drawn to her attention.
Branch leadership session 9-10 June
Ms Tomich gave evidence that she was due to make a presentation to a branch leadership session on 9-10 June 2015. A few days before the presentation Ms Woolley directed that Ms Tomich give a preview of her presentation to her, cutting short the period Ms Tomich believed she had to prepare it. She finished her preparation at about 2:30am on the day she was due to provide the preview. When she saw Ms Woolley later that day she told her she couldn’t go through the presentation with her. Ms Woolley responded that’s okay – just wanted to make sure you could get your presentation right… Other directors were not requested to do a run through of their presentations with Ms Woolley, nor have their presentations finalised early. Ms Tomich felt this was an attack on me and my competency and my capabilities.
Ms Woolley said she discussed the leadership session presentations with all of the directors who were to make presentations. She noted that Ms Tomich seemed to have some reservation about her presentation, along the lines of “I don’t know if I have much to say”. In light of this, Ms Woolley organised a preliminary run-through of her presentation. Other staff did not need this kind of assistance, Ms Woolley said.
Ms Tomich and another director were tasked with preparing warm up activities for the leadership session. The activities they devised included having participants make and fly paper aeroplanes, to see how well the participants worked as teams. Half an hour was allocated for the warm up session, but 15 minutes into the session Ms Woolley said very discreetly to Ms Tomich Can we get this over with? Ms Tomich was shocked. The same request was not made to the other director responsible for the session.
Ms Woolley said that she felt the warm up exercise was at completion after 15 minutes. Her comment to Ms Tomich about winding it up was very informal. It was also not the only occasion during the day that Ms Woolley intervened to regulate the flow of activities.
Conversation of 2 June 2015
Ms Tomich’s chronology provides the following details of a phone conversation between her and Ms Woolley of 2 June 2015:
10:00 am – 11:00 am. NM [Ms Woolley] telephoned me and advised she had received feedback that I was difficult to deal with. This threw me back to where issues first began within the Business Improvement and Support Branch and resulted in reduced confidence and withdrawal, I started to doubt my capabilities. I questioned the source of the feedback and the NM advised that the source could not be disclosed. At this conversation, NM also stated that she had her reservations about me and prompted me for a response. I advised I didn’t know what to say or what the incidents related to, and could not understand what would have generated the “negative feedback”. I asked the NM if my job was at threat and stated to the NM that the accusations being made against me made me feel my job was at threat. The NM tersely responded with “you are a permanent APS employee”. At that same conversation I was advised I would be representing the Branch at the Stage 1 Smart Centre Task Force. (NB: SCTF = two week engagement commencing 09 June 2015). I enquired about the scope of work and was chastised for asking this question as this was not aligned with NMs expectations. As an experienced EL2, and an experienced/fully qualified project manager the question in relation to the scope of work for this two week assignment was not unreasonable. I felt bullied as the comments made were not evidenced and were a personal attack.
I was confused after the conversation and wondered why this conversation could not wait until the regular fortnightly catch up scheduled at 08:45 am the following day. I was significantly impacted by this conversation and believe the approach was a breach of the APS Code of Conduct. The NM did not demonstrate natural justice or procedural fairness. I felt bullied.
Ms Tomich said that she had wanted Ms Woolley to give details of my inadequacies as she’d seen them, but Ms Woolley had been unable to do so. The comment Ms Woolley made about feedback from other staff changed the way Ms Tomich saw other people in the branch; she became paranoid. The phone call of 2 June 2015 was probably a contributor to me slipping back into a state of hopelessness.
Ms Woolley’s recollection of the phone call was that she had wanted to offer Ms Tomich an opportunity to develop as a senior officer by participating in the task force, but felt that she was defensive and somewhat negative about the opportunity. Ms Woolley said to her that it would be unhelpful if she participated in the task force with this attitude. She denied she began the conversation offering negative feedback about Ms Tomich based on comments by other members of the branch. She did comment that she perceived that Ms Tomich needed to be more autonomous in obtaining information about matters going on in the branch, and not constantly seeking answers and direction from Ms Woolley herself. She suggested that this attitude would not be a good one with which to approach her work on the task force.
Attitude of Ms Woolley
Ms Tomich characterised Ms Woolley’s attitude towards her during this period as bullying, and a personal attack on my character and my capabilities. She would telephone Ms Woolley only to be told Not now, Jackie, hang up. She often ended phone conversations with Ms Woolley feeling distressed.
Ms Tomich found it difficult on occasions to engage with Ms Woolley. As an example of this, Ms Woolley would conduct a regular fortnightly catch up with Ms Tomich by telephone at 8:45am on a Friday while Ms Woolley was driving to work. Ms Tomich felt that catch ups of this kind meant that I didn’t get her [Ms Woolley’s] undivided attention. One day, while Ms Tomich was giving her a verbal briefing by phone, Ms Woolley began talking to a parking attendant. This made Ms Tomich feel that her contribution to the branch was less than important.
Ms Woolley told the Tribunal that her executive assistant had organised a regular time each fortnight when directors could commit to being available for the catch up. She observed that she had a pretty demanding work schedule, so that she needed to stay in touch with her colleagues at odd times. Ms Tomich had never raised any issues with her about the timing of those catch ups.
On 17 June 2015, Ms Tomich had a phone conversation with Ms Woolley where she advised her that the latter’s comments in their conversation of 2 June had shattered me. Ms Tomich pointed out that she had previously been on a mental health care plan, which Ms Woolley had overlooked and dismissed. Ms Tomich said that Ms Woolley did not acknowledge or consider the concerns raised by me. By contrast, Ms Woolley gave evidence that Ms Tomich had told her in this conversation that she was happy to have been selected as the branch representative on the task force, and that Ms Woolley acknowledged Ms Tomich’s contribution and saw this as an opportunity to reassure Ms Tomich that she was a valued contributor to the Branch.
At about this time Ms Tomich was to undertake a performance assessment, or Individual Performance Agreement (IPA). The chronology records that on 6 August 2015 she telephoned Ms Woolley and left a message advising her that she wished to have a support person present for this process. Later that day Ms Woolley rang Ms Tomich to ask her why she felt she needed a support person. The reason Ms Tomich gave was Ms Woolley’s previous history of unfair and unsubstantiated comments. In the ensuing conversation, Ms Tomich told Ms Woolley that she felt marginalised from the branch and mentioned not being engaged in or invited to key meetings.
Though Ms Woolley had nominated Ms Tomich to participate on behalf of the branch at the Smart Centre Task Force, Ms Tomich believed that Ms Woolley also ensured that I missed a significant proportion of the kick-off of the task force by requiring Ms Tomich to participate in a branch leadership exercise which caused her to miss the first two days of the 10 day task force.
Ms Tomich’s request for leave in August 2015
Several selection panels for EL 1 positions in the Department were set up in August 2015. Ms Tomich was designated to be a member of one such panel. However, on 6 August 2015 she learned of her daughter’s impending surgery, necessitating her seeking a period of two weeks leave from late August. The period of leave would overlap substantially with the period in which the selection panels were to meet, meaning that she would now be unable to participate on a panel. Ms Tomich advised the coordinator of the selection panels of her need to take carer’s leave. She also registered her request for carer’s leave in an internal database, the ESSentials system, but did not directly advise Ms Woolley, her supervisor, of the request. Ms Tomich said that it was the responsibility of employees at the Department to enter their leave into the ESSentials system as soon as possible, which is what she did. She also recorded her leave requirements in the branch’s leave calendar. She said As far as I’m concerned, I followed the process.
During the telephone conversation with Ms Woolley on 6 August regarding Ms Tomich’s IPA, Ms Tomich did not mention her leave request to Ms Woolley.
Over the following days there were email exchanges between Ms Tomich and other officers who were concerned with managing the selection panels. Ms Woolley was unaware of these exchanges. On 12 August Ms Woolley’s administrative assistant was emailed about the leave request, and on 13 August the following email exchange occurred:
Ms Woolley:
Have I missed an email from you about the leave you would like to take in September?
Ms Tomich:
Message sent via ESSentials re carers leave (31 August to 11 September) advising certificate will be provided. Surgeon will not provide certificate until date of surgery (in case it doesn’t go ahead). Happy to discuss in further detail at our fortnightly catch up tomorrow.
Ms Woolley:
Thanks Jackie – I would normally have Directors discuss up and coming leave like this with me ahead of putting it in Essentials particularly given it is lengthy.
Also didn’t realise it was going to impact on your role in the recruitment process – this caused a bit of upset yesterday which might have been avoided.
We can discuss tomorrow.

Later, Ms Tomich forwarded an email to Ms Woolley with the following comment:
FYI – As soon as I became aware of the need to take carers leave, I entered it in the HR tool, included a message to you and I advised Christine Kruse and offered to assist where I could.
Ms Woolley responded, saying:
I think the issue was that others in the branch didn’t have visibility of your plans and was left to Haley to chase up [a] replacement through Maria which did not reflect well on the branch.
The following day, Friday 14 August, Ms Woolley and Ms Tomich were scheduled to have their fortnightly phone catch up at 8:45am. At 8:30am Ms Tomich sent Ms Woolley an email indicating that she was experiencing anxiety and felt it best to step back and look after my mental health. She said she would not be involved with the catch up because the anxiety associated with making that call is a little overwhelming.
Ms Woolley did not see the email and telephoned Ms Tomich from her car at 8:45am. Ms Tomich said she told Ms Woolley that she was in no state to talk to her, and that she wanted to end the call. She told Ms Woolley I cannot speak to you now several times during the conversation. She did not recall Ms Woolley telling her that she had not received her email declining to have the catch up. She told the Tribunal she believed Ms Woolley had shown blatant disregard for her feelings by making the call.
Ms Woolley told the Tribunal that directors requiring leave would talk to her to ensure she had general awareness of what leave was being taken. She regarded it as a professional courtesy. Her own manager’s executive officer had been in touch with her to raise concerns about the late change in selection process personnel, a matter which didn’t reflect well on the branch. She conceded that she must have overlooked Ms Tomich’s automated advice through the ESSentials system about her leave, but pointed to the large volume of emails she dealt with daily. She also said that Ms Tomich had personally discussed previous leave requests with her.
Regarding the 13 August email exchange, Ms Woolley said:
…it wasn’t, in my mind, an extremely serious issue. It was simply that the Executive Officer had given feedback to my office and that I felt on the back of that it was worth reiterating my expectation around leave and the implications of not having that discussion.
Regarding the phone call of 14 August, Ms Woolley said she had not read Ms Tomich’s email of that morning cancelling the catch up, because she was travelling to work. Had she seen the email she would not have called Ms Tomich, she told the Tribunal. She also said that she discontinued the call as soon as Ms Tomich said that she was in a distressed state, but first advised her to contact the Employee Assistance Program or People Support to give her help.
Ms Tomich said that Ms Woolley’s phone call:
…triggered something in me that reinforced that this woman had zero empathy or compassion or understanding of my mental health fragility at this time.
Ms Tomich saw her GP, Dr Sanjeewa Don, on 18 August 2015 and, on his advice, began a period of leave.
The medical evidence
The first question faced by the Tribunal, whether the condition for which Ms Tomich consulted Dr Don on 18 August 2015 was a new psychological injury or merely the recurrence of her previous injury, must be answered by reference to the medical evidence. In this respect, there is a high degree of consistency among the various medical opinions put before the Tribunal.
Dr Catherine Oelrichs, a consultant psychiatrist, wrote two reports – both dated 12 October 2015 – after examining Ms Tomich on 23 September 2015. She diagnosed an adjustment disorder with anxiety and depressed mood. She opined:
She has developed increasing distress surrounding her work situation, particularly her relationship with her recent manager and her concerns surrounding being unable to access carer’s leave…
The medical condition impacting upon work capacity is the current adjustment disorder with anxiety and depressed mood that Ms Tomich has developed over a period of time. Her condition has been most apparent since around August 2015.
Dr Don, Ms Tomich’s GP, wrote a report dated 19 September 2015. He noted that she was first impaired around late 2013, and by early 2014 she had symptoms of panic episodes, tiredness, poor sleep, palpitations, chest pains and worrying thoughts. She consulted him on 18 August 2015, where some of the symptoms were again in evidence. He wrote that she told him that her workplace issues had been continuing and got worse for last 03 months. He recorded that at that time there were No non-employment incidents. He listed various workplace factors – including being isolated, that she had not been invited to meetings and did not feel she was part of the team – as the main contributing factors for her condition.
His diagnosis was chronic adjustment disorder with mixed anxiety and depressed mood. He added:
The stress-related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of the preexisting disorder.
The clinical notes from Dr Don’s medical practice indicate that Ms Tomich did not attend the practice in relation to work issues between July 2014 and August 2015.
Ms Tomich’s treating psychologist, Ms Belinda Hill, wrote a report dated 10 October 2015. In it she indicated that she first saw Ms Tomich in March 2014 and treated her for symptoms of anxiety and adjustment disorder. She wrote:
Ms Tomich reported that she has experienced an increasingly deteriorating relationship with her current supervisor since March 2015. Ms Tomich characterises her supervisor’s behaviours as bullying.
She stated that her symptoms were consistent with a diagnosis of adjustment disorder with mixed anxiety and depressed mood. As at the date of her report in October 2015, she said that Ms Tomich’s symptoms were consistent with depression; she also gave a Differential diagnosis of Adjustment Disorder. She expressed the opinion that her recent incapacity is an aggravation of the symptom pattern following her October 2013 work related stressors. Ms Hill’s clinical records indicate that she had no sessions with Ms Tomich between July 2014 and September 2015.
Dr Derek Lovell, a consultant psychiatrist, examined Ms Tomich on 3 May 2016 and in a report of 10 May 2016 he diagnosed an adjustment disorder with anxiety and depressed mood of moderate severity. He recounted stresses Ms Tomich experienced in her employment history and placed emphasis on the application for carer’s leave in August 2015.
Reports from consultant psychiatrist Dr Bhaswati Bhattacharyya dated 27 October 2015 and 10 February 2017 were tendered, and she gave evidence during the hearing. She had examined Ms Tomich on 15 October 2015, as a result of which she diagnosed a Major Depressive Episode. She commented in her 2015 report that:
…the main factors which have contributed to Ms Tomich’s claimed condition appear to be employment related. There does not appear to be any non-employment related factors. The factors first contributed to Ms Tomich’s condition on 29 October 2013.
She expressed the opinion that the accepted condition with the date of injury of 29 October 2013 did not completely resolve.
However in her oral evidence Dr Bhattacharyya identified several sources of stress for Ms Tomich which were not work-related. Her daughter’s husband’s brother committed suicide in November 2014 – Dr Bhattacharyya described this as a major stress. There is also the death of a close friend referred to in Dr Don’s clinical notes (Ms Tomich said in fact this was a close friend of her partner) and the diagnosis of her mother with breast cancer. She noted these factors in the development of her major depressive episode, but could not say whether any of the work or non-work related factors significantly contributed to the onset of her condition. Dr Bhattacharyya’s opinion was that Ms Tomich could still have presented with a major depressive episode even if the email exchange of 13 August had not occurred. She considered that the major depressive episode was a separate injury to the adjustment disorder of 2013-2014, a fresh injury on a background of continuing injury.
The consistency of the medical evidence allows the Tribunal to draw a number of conclusions with little controversy. First, it is evident that Ms Tomich was suffering from a psychological injury by about 18 August 2015 which resulted in incapacity for work or impairment. As such it meets, subject to other provisions of the Act, the test of compensability in s 14. That psychological injury, based on the opinion of Dr Bhattacharyya, the most recent medical opinion, is a Major Depressive Episode, a diagnosis which seems broadly consistent with the diagnoses of the other health practitioners in evidence.
Secondly, it is evident that the injury was a disease contributed to, to a significant degree, by Ms Tomich’s employment by the Commonwealth. The medical evidence identified no contributing factors other than work-related ones, with the exception of Dr Bhattacharyya’s evidence. The latter referred to some personal issues affecting Ms Tomich, including two deaths of people close to her. However, the other medical evidence focuses almost exclusively on the work-related factors, and Ms Tomich herself made no reference in her evidence to other factors. Dr Bhattacharyya accepted that work-related issues were also significant factors. On balance, the Tribunal considers that Ms Tomich’s injury meets the definition of a disease in s 5B(1).
A separate injury?
Thirdly, the Tribunal is confident that the psychological injury suffered in August 2015 is a separate condition to the condition accepted by Comcare on 30 October 2015. Although there is some evidence pointing to this condition being a re-emergence of her earlier accepted condition, the weight of the medical evidence suggests that it is in fact a new injury. Ms Tomich presented a chronology to the Tribunal outlining work stresses she was experiencing from November 2013 to August 2015. In particular it details conflict in her previous workplace with the national manager of the Business Improvement and Support Branch before March 2015. She said that the environment under this manager was damaging to my health and impacted my work and private life significantly. In the chronology she recorded:
I felt I was being unfairly targeted though [sic] un-evidenced accusations, relentless criticisms and unreasonable directives. I was depressed about the unfair and unreasonable behaviour directed towards me.
She documents the stresses she was under in that branch. In January 2014 she reports I felt myself slipping into a depression…and in May 2014 records I had to leave work early due to overwhelming depression. In June 2014, however, her GP’s clinical notes record, in relation to her work:
thinhs going well …
has got a new posituion … much happy [sic]
On 1 July 2014 the chronology notes:
Email to NM and case manager advising feeling better and in a good headspace. Advised of my move to ICT and allocated complex project – confirmed I was loving the new role.
On 21 July 2014 she noted:
I confirmed feeling better although not completely “cured” confirmed still having sessions with psychologist.
In the chronology prepared for her application to the Tribunal Ms Tomich notes that, in August 2014, she was Floundering in ICT through lack of training… In November 2014 she notes that she was allocated no work, and in December 2014/January 2015 reports I felt like I was of no value to DHS. Dr Don’s clinical records on 20 February 2015 record mood ok …happy …feeling much better. In the seven consultations with Ms Tomich between this one on 20 February 2015 and the consultation on 18 August 2015, there is no reference to any work-related issues, though Ms Tomich told the Tribunal I’m certain I had discussed it [work stress] with [Dr Don].
It appears that the period up until about June 2014 was very stressful for Ms Tomich, and those stressors began to resume in her chronology from about June 2015, after she had begun work in the Digital Operations Branch under Ms Woolley. However, the period between June 2014 and June 2015 seems to have been less stressful for her, though she notes feeling frustrated and undervalued. Ms Tomich said of this period I was trying to cope. This appears to accord with the clinical records of Dr Don and her psychologist, Ms Hill.
All the medical reports suggest a surge in her anxiety levels in around August 2015. Dr Oelrichs notes Her condition has been most apparent since around August 2015. Ms Hills describes Ms Tomich’s mental health in August 2015 as an aggravation of the symptom pattern following her October 2013 work related stressors. Dr Don, her GP, commented that her condition as at September 2015 is not merely an exacerbation of the preexisting disorder, i.e. the condition for which he had treated her in 2014. Dr Bhattacharyya testified that the condition she observed in October 2015 was a fresh injury.
On the evidence, it is safe to conclude that in about August 2015 Ms Tomich suffered from a condition – Major Depressive Episode, per Dr Bhattacharyya – which was similar to, but more severe than, the condition she suffered from between 2012 and the early part of 2014. The earlier condition had abated somewhat between mid-2014 and mid-2015. Seen in this light, the Tribunal finds that she suffered at this time a new psychological injury or, possibly, an aggravation of her accepted condition of adjustment reaction with mixed emotional features. The most likely – but by no means the only – candidate for a date of injury is 13 August 2015, the date of the email exchange following which Dr Don declared her unfit for work.
On the basis that Ms Tomich’s condition of August 2015 was not the mere recurrence of her earlier adjustment disorder, a fresh assessment must be made of Comcare’s liability under s 14 for that condition.
Application of Comcare v Martin
In assessing Comcare’s liability for a fresh injury in about August 2015, and in particular whether liability may be excluded under the exemption in s 5A, the Tribunal must determine precisely what factor or factors caused her injury. In this regard, it is important to consider the High Court’s recent clarification of the law surrounding reasonable administrative action in the decision of Comcare v Martin (2016) 91 ALJR 29.
This case involved an ABC employee, Ms Martin, who had complained of bullying and harassment by a supervisor. She then applied for a position in the ABC which would place her away from the supervision of that supervisor. She was informed in a subsequent telephone conversation that she had been unsuccessful in her application, and that she would need to return to the supervision of the supervisor she had complained about. She suffered an adjustment disorder as a result of this conversation. Ms Martin contended that there were two factors within the conversation in question: advice of her failure to obtain promotion and notice that she would be returning to an environment she dreaded. The second factor was what caused her injury, she contended, and it did not constitute reasonable administrative action. The Tribunal, at first instance, nonetheless conflated those two factors, but the Full Court of the Federal Court accepted the distinction. Finally, the High Court upheld the Tribunal’s reasoning that returning to her substantive position was a direct and foreseeable consequence, in Ms Martin’s mind, of the failure of her bid for promotion, and that the deterioration of her mental condition was therefore a consequence of the decision not to promote her.
The High Court considered the meaning of the words as a result of in s 5A(1). It held (at [47]):
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
It follows that, if the administrative action found to have this causal connection with the employee’s injury can be properly characterised as reasonable administrative action, the exclusion in s 5A(1) is made out.
The question arises in the present proceedings as to what the administrative action in question actually was, as the first step in determining whether it was reasonable, and undertaken reasonably. Comcare contended that the email exchange of 13 August 2015 was what caused Ms Tomich’s mental deterioration. Ms Tomich, by contrast, contended that the stresses under which she was placed in the months preceding 13 August 2015 were contributing factors in her deterioration.
The difficulty the Tribunal encounters here is that the events leading up to Ms Tomich’s consultation with Dr Don on 18 August 2015 can be characterised in several ways. They may be considered a single but drawn out series of workplace conflicts in which no single event stands out as meeting the causal test postulated in Martin, but where the series taken as a whole certainly does. They may, alternatively, be characterised as individual catalysts to her injury, each of which needs to be assessed against the test in Martin. The difficulty in following the latter course, however – a difficulty, we observe, encountered in many psychological injury cases faced by the Tribunal – is that the evidence here is not sufficiently clear-cut to allow the contribution of individual episodes in Ms Tomich’s history to be analysed in this way. The psychiatric evidence in Martin, by contrast, was sufficiently distinct to allow the Tribunal to consider the impact two separate parts of the same conversation had as discrete factors in the development of Ms Martin’s mental condition. The medical evidence before the Tribunal in the present matter lacks the specificity for such an analysis to be concluded with the same level of certainty as in Martin.
Dr Oelrichs reported that Ms Tomich’s condition developed over a period of time but was most apparent since around August 2015. Her psychologist, Ms Hills, attributed her condition to an increasingly deteriorating relationship with her current supervisor since March 2015. Without apportioning weight to particular factors, both Ms Hills and Dr Lovell seem to attach some emphasis to the difficulties surrounding the leave application in August. Dr Bhattacharyya accepted that those difficulties were significant in the onset of her illness, while noting the possibility that she might have developed her condition even without the email exchange of 13 August.
Ms Tomich submitted that the phone conversation of 2 June 2015 was significant in the onset of her injury, though the Tribunal notes that in the two subsequent consultations with Dr Don no reference to any work-related stresses were recorded in his clinical notes, nor were there any attendances on her psychologist, Ms Hill, in this interval. Ms Tomich appears to have routinely recounted other work-related concerns to Dr Don; her apparent failure to raise any concerns – or of Dr Don to record them – seems significant.
As already noted, imprecise medical evidence is a hazard the Tribunal must routinely navigate. The medical and other evidence before the Tribunal in these proceedings nonetheless allows it to be satisfied that the events surrounding Ms Tomich’s seeking of carer’s leave in August 2015 – culminating in the events of 13 and 14 August – was the factor without which she would not have suffered the psychological condition with which she presented to Dr Don on 18 August 2015. As the administrative action which caused Ms Tomich’s condition, it meets the test of causation prescribed in Martin. The question the Tribunal must now consider is whether it is administrative action which falls within the exemption in s 5A.
CONSIDERATION

The exemption in s 5A arises where administrative action is taken in respect of the employee’s employment. Administrative action pertaining to the way that an employee carries out their duties, for example, will not tend to fall within the exemption, whereas action relating to the employment relationship per se will generally fall within it: Commonwealth Bank of Australia v Reeve 199 FCR 463. It seems clear that the seminal email of 13 August 2015 constituted informal feedback to Ms Tomich about the way directors were expected to seek leave; as such it appears to be action in respect of her employment, and not operational action in the sense that term is used by Gray J in Reeve.
In respect of the events of August 2015, the Tribunal hearing became concerned with two questions: was it reasonable for Ms Tomich not to advise Ms Woolley directly of her impending leave, and was it reasonable for Ms Woolley to send Ms Tomich the email of 13 August? On the former question, there was certainly some evidence that Ms Tomich may have been technically within her rights not to have advised Ms Woolley of the need for leave. Ms Tomich said that there was no robust process in the branch for how leave is communicated, and the Tribunal accepts that. While one might expect an EL 2 occupying a fairly senior role in the branch to proactively advise her supervisor of a personal requirement that would have a major bearing on the branch’s operations, it is perhaps not altogether surprising – given the way Ms Tomich regarded Ms Woolley – that she played the leave application by the book.
The issue with which the Tribunal must deal, however, in considering the application of the s 5A exemption is not the reasonableness of Ms Tomich’s approach to this matter, but the reasonableness of Ms Woolley’s. Reasonable administrative action is a one-way street, imposing an obligation on the employer but not the employee to take reasonable action in a reasonable manner.
The accounts of events in 2015 offered by Ms Tomich and Ms Woolley during the hearing often did not diverge significantly; the differences appeared to lie in their perception of the events, not in the details of the events. To the extent that they did diverge, however, the Tribunal has tended to prefer the evidence of Ms Woolley, given that this evidence went almost entirely unchallenged in cross-examination.
Having considered the evidence, the Tribunal finds that Ms Woolley’s actions in respect of the leave application were reasonable, and were carried out in a reasonable manner. Ms Woolley perceived that Ms Tomich’s request for leave would impose operational difficulties on the branch, particularly given the imminence of the selection panel process. Irrespective of the detail – or lack thereof – of any administrative strictures on the taking of leave, it must be regarded as fully within the realm of contemplation that a supervisor might draw to the attention of a fellow executive an expectation that developments of this kind should not take superiors by surprise. Ms Woolley described this as a professional courtesy. Raising a concern of this character should fairly be regarded as reasonable administrative action, and the innocuous tone in which it was raised constitutes action taken in a reasonable manner. There was nothing in the email suggesting adverse consequences or disciplinary action arising from the failure to advise of the leave earlier. At this level of the public service, direct and robust communication between senior officers should be regarded as commonplace, even where one of the officers may have had some history of mental illness. Alternatively, to characterise communications like the email sent by Ms Woolley on 13 August as unreasonable would, the Tribunal considers, deny Australia’s senior public servants the candour and vigour they require to perform their higher level duties effectively.
To characterise Ms Woolley’s email as reasonable is not to deny that it caused distress to – indeed, probably inflicted a psychological injury on – Ms Tomich. The test imposed by the exemption in s 5A is an objective one – was the administrative action reasonable? was it undertaken in a reasonable manner? – not a subjective one assessed solely by its impact on the employee. Put another way, it does not follow that because the action gave rise to injury, it cannot have been reasonable.
Ms Woolley’s other actions in connection with the leave application must also be considered reasonable. Her phone call to Ms Tomich on 14 August can hardly be considered unreasonable when she had a routine catch up scheduled for that time and did not see the email Ms Tomich had sent, only minutes prior, calling off the call.
Even if it might be said that anything done by Ms Woolley was imperfect, or might have been done in a different but better way, that observation does not rob it of the label reasonable for the purposes of this section. In Comcare v Martinez (No2) 302 ALR 608 Robertson J held that administrative action did not become unreasonable merely because alternative reasonable courses of action were available to the employer. His Honour said (at [81]):
The further error of law which the applicant contends is evident in this paragraph goes to the issue of alternatives. In my view it could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.
Further, His Honour commented (at [83]):
I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47-48 where his Honour said, in a context much closer to the present legislation:
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.
Having found that it was the administrative action taken in respect of Ms Tomich’s leave that caused her injury, it is unnecessary to consider the contribution made by earlier workplace events in 2015. To the extent that those events constitute actions taken in respect of her employment, the Tribunal would have found that they too were reasonable administrative action taken in a reasonable manner. For the reasons already given, the Tribunal accepts Ms Woolley’s account of the conversation of 2 June 2015, for example. Its content and tone should be regarded as unexceptional and entirely fitting for two senior officers of the public service to engage in.
Other matters
Ms Tomich sought to adduce evidence in relation to the return to work process she undertook following the events of August 2015. She particularly sought to highlight how the process illustrated bad faith on Ms Woolley’s part towards her, and an intention by Ms Woolley to financially penalize Ms Tomich. The Tribunal considered the probative value of such evidence to be of a low order, given that the test applied by the legislation relates to how administrative action is undertaken by an employer; the personal views of a particular representative of the employer towards an employee are not in themselves relevant. This is particularly so here where the evidence which is said to demonstrate personal hostility occurs after the date of injury.
CONCLUSION
On the basis that Ms Tomich sustained a work-related psychological injury on or about 13 August 2015, an injury caused by reasonable administrative action taken in a reasonable way in respect of her employment, her claim for compensation cannot succeed. Accordingly, the Tribunal affirms the reviewable decision made by Comcare on 3 February 2016.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries and Dr Peter Wilkins, Member

..........................[sgd]..............................................
Associate
Dated: 26 June 2017

Date(s) of hearing: 13/14 February 2017

Applicant: In person

Counsel for the Respondent: Kristy Katavic

Solicitors for the Respondent: Australian Government Solicitor

[2017] AATA 992

26 June 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Procedural Fairness

Intention

Date(s) of hearing:	13/14 February 2017
Applicant:	In person
Counsel for the Respondent:	Kristy Katavic
Solicitors for the Respondent:	Australian Government Solicitor