Tuckett and Commonwealth Bank of Australia (Compensation)

Tuckett and Commonwealth Bank of Australia (Compensation) [2017] AATA 1274 (15 August 2017)
Division:GENERAL DIVISION
File Number(s): 2015/6246
Re:Aaron Tuckett
APPLICANT

Commonwealth Bank of AustraliaAnd
RESPONDENT

DECISION
Tribunal:Ms A F Cunningham, Senior Member
Dr R Walters, Member
Date:15 August 2017
Place:Hobart

The decision under review is affirmed.
..........................[sgd]............................
CATCHWORDS
COMPENSATION – Psychological condition – Respondent accepted employment contributed to condition – Whether result of reasonable administrative action taken in a reasonable manner – Meaning of administrative action – Meeting resulting in formal warning – Causative of injury – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1)-(2), 14
CASES
Comcare v Martin (2016) 258 CLR 467
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Lim v Comcare (2017) 154 ALD 413
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
Dr R Walters, Member
15 August 2017

At the time of his injury the applicant, Aaron Tuckett, was employed as a sales representative for the Commonwealth Bank of Australia (the Bank). Mr Tuckett worked as part of the team in the call centre. His duties included answering customer enquiries and determining and offering suitable products. Mr Tuckett had been employed with the Bank since 18 February 2008.
On 11 July 2015 Mr Tuckett made a claim for workers compensation payments in respect of a psychological ailment which he claims to have sustained on 2 June 2015. The respondent accepted that Mr Tuckett’s psychological ailment was contributed to a significant degree by his employment, but maintained that it was suffered as a result of reasonable administrative action undertaken in a reasonable manner in respect of his employment.
The respondent’s decision was affirmed on review on 21 October 2015 and Mr Tuckett has appealed the decision to the Administrative Appeals Tribunal (the Tribunal).
ISSUES
The issues for the Tribunal are to determine: firstly, what factors in the applicant’s employment were significant contributors to the injury; secondly, whether any one of those factors constituted reasonable administrative action; and thirdly, if so, whether that administrative action was undertaken in a reasonable manner.
LEGISLATION
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Pursuant to s 14 the respondent is liable to compensate an employee for an injury suffered by the employee if the injury results in incapacity for work.
“Injury” in the SRC Act 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.
“Disease” in the SRC Act 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.
By s 5A(1), “injury” 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.
By s 5A(2), “reasonable administrative action” includes but is not limited to:
(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.
Mr Tuckett’s claim
Mr Tuckett claims to have suffered a psychological ailment in the nature of panic disorder, agoraphobia and adjustment disorder with anxiety and depression. He contends that his employment with the respondent was a significant contributing factor to his injury.
The only factor that Mr Tuckett accepts may amount to administrative action taken in respect of his employment with the Bank is the event which took place in December and which is described by Mr Tuckett as “I was reprimanded for unethical selling”. It is contended however that, whilst there may be some basis for finding that it was “causative” of the applicant’s injury, it is argued that this action was not undertaken in a reasonable manner.
Accordingly it is submitted that the Tribunal should find that there was no reasonable administrative action taken in a reasonable manner in respect of Mr Tuckett’s employment with the respondent that was causative of his injury.
Respondent’s claim
The respondent contends that the reviewable decision should be affirmed because the applicant’s injury was suffered as a result of reasonable administrative action undertaken in a reasonable manner. In its statement of facts issues and contentions the respondent lists a number of workplace events/incidents which it contends were causative of Mr Tuckett’s injury and constituted reasonable administrative action undertaken in a reasonable manner.
EVIDENCE
Aaron Tuckett
In the T documents at T35 is a signed statement of Mr Tuckett dated 28 August 2015 which was prepared in response to a request following his claim for workers compensation. The statement contains a history of the “work pressure” issues that he contends led up to the panic attack he sustained at work on 2 June 2015.
Mr Tuckett prepared a further statement on 29 April 2016 which was tendered in evidence. He states that his statement of 28 August 2015 detailed all work matters about which he had been unhappy since April 2014. Mr Tuckett states that it was in early 2014 that he was asked to move into the Credit Cards team for a period of one to two months due to understaffing in that area. He states that he was reassured that the move would not affect his yearly results however after returning to his original team, he discovered that no adjustment of his targets had been made to compensate him for the move and he was expected to “catch up on his results”.
After returning to his “normal night sales position”, Mr Tuckett discovered that his shift had been adjusted to start and finish thirty minutes earlier than normal without warning or discussion. He was given a document to sign which stated that the Bank could review and change his contract and pay at any stage. Mr Tuckett states that he signed the document under protest and it was at this point that he first became suspicious that the Bank may have been trying to abolish his contract because he was on a higher pay rate than that of newer employees and also had “bonus potential”. He said however, that he was told not to worry about his position by his Team Leader Emma Ranger, who at that time he trusted as a friend.
In his statement of 29 April 2016, Mr Tuckett listed three workplace events that he had informed medical practitioners had led to his panic attack. They were general changes in the workplace including: increasing pressure targets; colleagues being “performance managed out”; concerns about his own employment, and; “a crisis of confidence in management including being singled out by a manager and unfairly accused of unethical selling”. Mr Tuckett said that he had felt insecurity about his employment for six months prior to his panic attack on 2 June 2015.
Mr Tuckett said in his statement that it was around mid-2014 when management started to closely monitor the scripting used during telephone calls. Mr Tuckett acknowledged that he was counselled about breaches in reading the scripts on a number of occasions, which he accepted, until being accused of “unethical selling” in December 2014 and some other minor breaches/exceptions which he contends was unfair. Mr Tuckett stated that there was considerable pressure for members of the team to make sales targets and that the monitoring of calls added to the pressure.
Mr Tuckett said that the actions of team managers Emma Ranger and Lee Estcourt in vocally commenting on breaches or exceptions within hearing range of the team members created a stressful and unpleasant work environment. It would often be several days before “the offender” was spoken to. Mr Tuckett also referred to a time when he had requested leave to attend his son’s birthday on 19 June and was denied although he had provided 4 weeks notice. He was informed by Ms Ranger that the leave time was not available as it had been exhausted by other employees. She had suggested that he approach a teammate and ask whether he could swap days.
Mr Tuckett described one of the biggest issues affecting him as when PM manager Jessica Hurd began reviewing the team’s telephone calls. A number of breaches were found with respect to Mr Tuckett’s phone calls, in particular relating to the issue of “unethical selling”.
Mr Tuckett stated that he became particularly anxious when he heard from Ms Ranger that four other employees had been “let go”. Some of these employees had been on older style contracts similar to Mr Tuckett’s. When he tried to discuss his job security concerns with Mr Estcourt and Ms Ranger, they did not take his concerns seriously.
Mr Tuckett was informed by Ms Ranger that a meeting would be convened following the discovery by Ms Hurd of a number of breaches during her monitoring of his telephone calls. The most significant breach related to his having opened two new GoalSaver accounts and closing the original account to ensure no loss of interest to the customer. It was Mr Tuckett’s evidence that when Ms Ranger informed him about the breach in October 2014, he was shocked and surprised and informed her that he wished to dispute the allegation as he was following a practice taught by managers and discussed during team meetings. He maintained that the practice had appeared on the teams “Big 5 goals” set by the team each week. Mr Tuckett said that he was informed by Ms Ranger not to rock the boat and just attend the meeting. Mr Tuckett stated that because “unethical selling” can be grounds for instant dismissal he became worried about his job security and desired the meeting to be held as soon as possible. It was however delayed for several weeks while Ms Hurd reviewed Mr Tuckett’s calls from the previous few months and allegedly discovered a number of other minor breaches.
Ms Hurd subsequently convened a meeting between herself, Ms Ranger and Mr Tuckett on 2 December 2014. Prior to the holding of the meeting on 2 December 2014, Mr Tuckett was asked whether he wished to have a support person present. Because Ms Ranger was a trusted friend at the time he understood that she could act as his support person.
Mr Tuckett disputed that his actions in closing one GoalSaver account and opening two new GoalSaver accounts in order to avoid the loss of a month’s interest for a client constituted “unethical selling” as claimed by his managers. It was Mr Tuckett’s evidence that this practice had been discussed and indeed encouraged at team meetings convened by the team managers in order to boost the team’s sales targets. Mr Tuckett explained that not only did the individual sales representative benefit from increasing their number of sales through this practice but that the benefit was shared by the whole team, including the team manager, and that it had the potential to result in bonus payments. Mr Tuckett maintained that Ms Ranger was particularly excited each time one of the team members achieved a new sale and that this would be recorded on a whiteboard in the office for all to see.
Mr Tuckett said in his statement that the meeting was poorly handled and that no one was interested in what he had to say. He was surprised that Ms Ranger denied all knowledge of the practice considering she had authorised it and sold it to the whole team during meetings. Mr Tuckett considered that he had been singled out for reprimand with respect to a “centre wide practice”.
It was Mr Tuckett’s evidence that he was “made to feel like a criminal”, that he had done something “really wrong. Like [he] was stealing from the Bank. It was brutal was the only thing I could really think of at all. It was very, very intimidating”. Mr Tuckett stated that he “got noticeably upset about the fact that [he] was being accused of this unethical selling”. He maintained that he was in fact saving the customer money by avoiding loss of interest on the balance account for that month. In Mr Tuckett’s words:
I was a number one sales operator, and then to be accused of being unethical for something that I was instructed to do, I raised that issue with Ms Hurd during the meeting. And to be labelled unethical, for me was devastating. So I did mention that to Ms Hurd and I contested it and thought it was a joke.
The issue was not resolved at the meeting on 2 December 2014 and Mr Tuckett said he was left unsure as to his future with the Bank. At the conclusion of the meeting Ms Hurd informed Mr Tuckett that she would look into the issue of “unethical selling” and make a decision about his employment. Mr Tuckett disputed that he became agitated during the meeting and had later apologised to Ms Hurd because he did not feel that he was in the wrong. It was not until 30 December that a further meeting was convened with Luke Freeman who was relieving Jessica Hurd as PM Manager.
In the medical report of Dr Farnbach dated 31 August 2015, he records that Mr Tuckett had advised him that Ms Hurd’s style was very aggressive. In answer to questions from Mr Wallace, Mr Tuckett said that in her day-to-day actions within the team, Ms Hurd came across as aggressive and that her aggression was not personally directed at him.
In addition to the GoalSaver account issues, Mr Tuckett said he was counselled in relation to other alleged breaches that had been discovered as a result of the telephone call audit. During one telephone call when a client enquired as to the whereabouts of her card after setting up a new account at a branch, Mr Tuckett said that after checking the client’s profile and seeing that there was a “stop” in place on the account which prevented the issue of the card, he decided to open a new account and issue a card to the customer. Mr Tuckett claimed that this avoided the client having to attend at the branch to provide ID in order to have the “stop” removed. The other issue raised at this meeting concerned Mr Tuckett’s failure to accurately read the prescribed script, which he said was deemed a minor exception.
Mr Tuckett said he was surprised when Ms Ranger advised Ms Hurd that she had no idea about the practice of closing a GoalSaver account and opening two separate accounts to save interest for a customer. Mr Tuckett described this as “a stab in the back at the time” because she was “more than aware of it” and used her smartcard and her password in order to authorise the closure of the accounts and transfer the funds. He also recalled Ms Ranger’s excitement when new GoalSaver accounts were opened which she called “Goalies” and would immediately enter the new sale on the whiteboard. Mr Tuckett said that he had also advised that Lee Estcourt and Luke Freeman had coached him in the GoalSaver account practice. He was not sure whether he had also mentioned Nigel McKenzie.
The only tendered notes with respect to this meeting between Mr Tuckett, Ms Hurd and Ms Ranger was a hand written excerpt from Ms Hurd’s diary which lists Mr Tuckett’s responses to exceptions raised as “finishing script”, “GoalSaver”, “removing stop” and “own wording”.
Prior to the meeting Ms Ranger informed team members at a team “huddle” that the practice of closing and opening new GoalSaver accounts was not acceptable and should cease. Mr Tuckett said they were informed that this practice constituted “unethical selling” for which they could be dismissed. Mr Tuckett said that he was not aware that any other member of the team had been identified as also engaging in this practice.
Mr Tuckett was advised that further investigations would be made regarding the practice and that the meeting would be reconvened at which point he would be advised about the future of his position with the Bank.
This further meeting however was not convened until 30 December by Luke Freeman who was relieving Ms Hurd as PM Manager. Mr Tuckett claimed that Luke Freeman was “one of the managers who had authorised the transactions on multiple occasions”. Mr Tuckett said that the meeting “was pretty informal” and it was as if he was told to “forget about it, like it was being swept under the rug, sort of thing, and it was like a tap on the wrist”. Mr Tuckett described the meeting as “a good meeting” and was relieved that he still had his job. He was not happy however that he had been labelled as having engaged in unethical selling. It was Mr Tuckett’s evidence that it was a very difficult period for him, between the holding of the first meeting on 2 December 2015 and the subsequent meeting with Mr Freeman on 30 December, not knowing whether his position would be terminated. During this period Mr Tuckett went on leave for a period of some 10 days from around 8 December and Ms Hurd took leave from 19 December for the rest of that month.
In his written statement Mr Tuckett said that despite various attempts to have the matter reviewed, he was “continually brushed off and told not to rock the boat by my Team Leader Emma Ranger”. He felt very let down by Ms Ranger who he had regarded as a trusted friend.
It was Mr Tuckett’s evidence that he had informed both Mr Estcourt and Mr Freeman that he had advised Ms Hurd that they had authorised this practice with the GoalSaver accounts. He was however unable to recall the conversation and their responses. He could not recall whether they either denied or accepted what he had said.
Mr Tuckett attended a further meeting on 26 February 2015 convened by David Rendo to discuss further breaches. Mr Rendo assumed the position of PM Manager in early 2015. Mr Rendo changed the way in which breaches were recorded and they no longer were termed breaches but “exceptions”. It was Mr Tuckett’s evidence that the meeting was conducted in a professional, calm and businesslike manner. Mr Tuckett agreed that the outcome of the February meeting was another formal warning and that if there were any further problems, termination of his employment would be considered.
Following the February meeting, Mr Tuckett signed a document on 21 April 2015 which stated:
Aaron was given a first and final verbal warning regarding breaching the sections of the Statement of Professional Practice outlined above. He also re-signed the Statement of Professional Practice confirming that he understood the content and that further disciplinary action may be taken if he were to breach this policy in the future. These have been placed within his career file.
The document listed a number of historical exceptions dating from 12 August 2014 and three further exceptions following the meeting held on 2 December 2014 which were dated 23 December 2014, 27 January 2015 and 24 February 2015.
After a number of other minor exceptions were found with respect to Mr Tuckett’s telephone calls, Mr Tuckett asked to listen to one of the calls which was reluctantly agreed to by Mr Estcourt and Ms Ranger. After listening to the call Ms Ranger agreed that no exception was raised and the other exception was a minor one.

Another exception was raised in mid May 2015 concerning an overdraft application. Immediately after the call Ms Ranger advised that she would listen to the call. Having listened to the call she informed Mr Tuckett that overall “it was good” but that he had missed one step. After Mr Rendo was involved the following day Mr Tuckett was informed that there was a major exception on the application. Ms Ranger advised Mr Tuckett that the customer had answered “no” in response to a question when the answer should have been “yes”. Mr Tuckett reviewed the call and noted the question as “have you been truthful in all the information you have provided and have you given any false names”. He noted that the customer had hesitated before responding “no” in a confused manner. It was Mr Tuckett’s understanding that the customer had replied that she had not provided any false names. Mr Tuckett felt that the question was poorly worded. He was upset because had he been advised of the exception immediately following the call he could have called the customer within the 10 minute timeframe allowed to rectify the problem.
Mr Tuckett went on to state:
This was the atmosphere I was working in on 2 June 2015 when Dave Rendo made the comment to Emma “Aaron hasn’t made any sales today” and I unsuccessfully tried to get Emma to allow me to go home because I was suddenly feeling overwhelmingly sad and distracted. Her response to my request compounded that feeling and led to the panic attack. I had no knowledge on 2 June 2015 of any proposal for further counselling over breaches or exceptions or otherwise.
Under cross-examination Mr Tuckett agreed that within a year of commencing his employment with the Bank on 18 February 2008 he had performance management issues in relation to failing to adhere to proper work schedules. Mr Tuckett agreed that he received two formal warnings, one in February 2009 and the second in March 2009. Mr Tuckett agreed that there were a number of subsequent occasions when he was counselled for failing to read appropriate scripts and not adhering to the Bank’s policies and requirements in dealing with customers.
It was Mr Tuckett’s evidence that the closure of an account with a balance of over $10,000 and transfer of funds required the authorisation of a manager by the entry of a swipe card. Mr Tuckett maintained that on average he would come across at least 10 GoalSaver accounts each week and that if he did not proactively offer the option to split the account containing a large balance by closing it and opening two new GoalSaver accounts, he “would be marked down in our CES calls”. The practice was regarded as “business as usual”. Mr Tucker was accordingly surprised that he had not been reprimanded for this practice through previous call monitoring.
Mr Tuckett’s evidence regarding the events of 2 June 2015 was that he was initially upset and distressed after hearing Mr Rendo comment to Ms Ranger “Aaron has no sales on the board you need to get onto that”. Mr Tuckett said that although the comment was made within earshot, it was as if he was not even present at the time.
Mr Tuckett took a few more calls before feeling overwhelmed and as if he “wasn’t really all there mentally” at which point he approached Ms Ranger advising that he wasn’t feeling well and asked whether he could go home. After initially responding “no” she realised that Mr Tuckett was upset and called him over to her desk. Mr Tuckett explained that he:
wasn’t really with it and was feeling unfocused and frustrated. I told her that a family friend had passed away over the weekend and she responded by telling me that I couldn’t leave and there were too many people off already. She did ask me about the person who had died but her manner was cold and unsympathetic. She said that if I did leave I would have to go to emergency and provide a doctor’s certificate for the last two hours of my shift.
As it was apparent that Ms Ranger was not sympathetic to his situation, Mr Tuckett said that he:
began grasping at straws, bringing up a heated discussion my wife and I had on the weekend about the kids’ education and her wanting to move to New South Wales as there is a better opportunity for special education for my two eldest children who are both on the autism spectrum. I made the argument out to be worse than it really was hoping to gain sympathy or understanding from Emma who had been a friend through most of my employment at CBA.
Mr Tuckett went on to explain that he couldn’t be at work any longer and needed to leave and that the workplace was “fucking with my head”. He told Ms Ranger that he used to love coming to work but in the last six months had come to dread it. After realising that there was a real problem, Ms Ranger sent him out for a ten minute break.
It was Mr Tuckett’s evidence that he went over to lock his computer and retrieve his building pass at which time he felt his heart starting to race, felt dizzy and his eyes were watering. By the time he got to the top of the stairwell tears were rolling down his face, he felt confused and did not know what was happening to him. When he got downstairs he began to hyperventilate and started to wonder whether he was having a heart attack. He telephoned his wife sobbing uncontrollably and told her that he was not allowed to leave. His wife feared that he was having a panic attack that she was able to calm him down and suggested that he call Mr Estcourt whom she had previously met and thought might be more understanding and supportive.
Mr Estcourt brought Mr Tuckett’s bag to him commenting “wife problems”. Mr Tuckett was upset that Ms Ranger had betrayed his confidential conversation with her. Mr Estcourt informed Mr Tuckett that Mr Rendo had said that he no longer had to attend at the emergency department in order to obtain a doctor’s certificate and organised a taxi to take him home.
Mr Tuckett said that he went home with every intention of returning to work the following day however after experiencing heart racing, hyperventilating and no sleep during the evening of 2 June 2015, the following morning he “felt terrible, like everything was crashing around me and I could not function”. Mr Tuckett consulted Dr Christine Funnell that morning who suggested that he had experienced a panic attack and wanted to refer him to a psychologist. Dr Funnell issued him with a doctor’s certificate pending his appointment with the Bank’s EAP.
Mr Tuckett said that there were a number of issues at work dating from around mid- 2014 and leading up to his panic attack on 2 June 2015 which changed the previous enjoyable work environment that he had experienced. He said that management’s monitoring of strict adherence to scripts commenced around this time. Generally Mr Tuckett did not have a problem with the enforcement of strict adherence to scripts or being counselled about breaches except when the criticism was unfair which occurred when he was accused of unethical selling in December 2014 and a couple of minor exceptions around February 2015. Mr Tuckett said that the team was under pressure to make sales targets and the scrutiny of calls added to this pressure. Particularly upsetting were the occasions when Ms Ranger and Mr Estcourt on discovering breaches or exceptions, would make comments such as “oh, shit here’s another one” in voices loud enough for the whole team to hear. However it would be several days before the “offender” would be approached leaving everyone to wonder in the meantime who was at fault. This created a stressful and unpleasant work environment.
There are a number of other matters referred to by Mr Tuckett in his written statement that he said increased his dissatisfaction with the workplace including the unexplained dismissal of a work colleague who was a friend of his. Mr Tuckett claims that they were instructed to cease contact with the person without any explanation from management.
Georgia Melvin
Georgia Melvin, a former sales and service representative with the Bank between January 2014 and March 2016, gave evidence on behalf of Mr Tuckett. In her written statement Ms Melvin states:
During this time we require (sic) to sell many products to meet our unrealistic KPI’s. One of those products was a GoalSaver in where (sic) we were encouraged by management and through the team environment (as best practice) to open new accounts by closing existing GoalSavers with balances nearing or over $100,000 and opening to new GoalSaver accounts. We were encouraged to close the existing account so the customer would not be voided of interest by either making a withdrawal without replacing the funds or not increasing the balance. At the end of opening the account management were required to enter their cards into the computer to authorise the movement of funds to complete the account opening (co-authorisation was explained to us as an opportunity for management to overview all high-risk practices to ensure all high risk activities were done in accordance to the Bank’s guidelines.) This was common practice throughout the call centre and was shared among teammates as a way to get more sales.
Ms Melvin went on to state that she followed this procedure and “was never coached or reprimanded around unethical selling or was even made aware that this was not a practice that should be taking place as it was a common practice throughout the centre”. Ms Melvin stated that she had not heard the term “unethical selling” being used to describe this practice.
In her oral evidence to the Tribunal Ms Melvin maintained that the practice of closing and opening new GoalSaver accounts was promoted by Team Leaders who included Luke Freeman and Emma Ranger when she returned from maternity leave. Under cross-examination Ms Melvin agreed that Ms Ranger was not involved in staff training following her return from maternity leave and that it was Mr Freeman and occasionally Mr Estcourt who would be present at group meetings. It was Ms Melvin’s evidence that she first learned of the practice from another team member who had suggested that rather than “having a customer lose out on the interest, close the GoalSaver account that’s nearing or at $100,000, close it down, open up two new accounts and split the funds between the two accounts. That way, the customer is not missing out on the interest and they have got plenty of room before they reach the $100,000 again”. Ms Melvin could not recall the name of the particular team member.
Ms Melvin said that she was not very successful at sales and rarely earned a bonus. On the other hand Mr Tuckett was a successful sales member and would often hit his target of seven sales per day. Ms Melvin recollected that there were approximately three exceptions recorded against her over the two years of her employment and there were others that were later removed. These exceptions related to failures to accurately read the required scripts. Ms Melvin said she had no recollection of the team being informed that the practice of “unethical selling” was to be discontinued. It was her evidence that until she was moved to the service division in around October 2015, she continued the practice now referred to as “unethical selling”. Whilst she offered the option to close and open two new GoalSaver accounts, not every customer accepted the offer. For amounts over $50,000 which was later changed to a $100,000 limit, the Team Manager was required to authorise the transfer of funds by entering their smartcard and password into the computer.
Nigel McKenzie
A number of witnesses were called by the respondent to give evidence both in the form of written statements and oral evidence to the Tribunal. Nigel McKenzie was one of Mr Tuckett’s Team Leaders over a period of some six months. It was his evidence that:
the practice of opening new accounts to replace older accounts to boost sales was not promoted, condoned or allowed within CBA. The only reason a client services representative would complete this malpractice would be to boost their own sales figures. This practice was not permitted by the Bank. This practice was never encouraged by Team Leaders or any other staff within the department. This was not a tactic employed by the department.
Team Leaders or managers were not required to sign off on these practices as they were not allowed and if this was occurring then they were not aware that this action was taking place.
In certain situations, Team Leader or Manager were required to authorise a transfer of funds, this was not an approval of the tactic being used. I was not aware that Mr Tuckett was engaging in this practice and therefore I would not have raised the issue with him.
If this practice were to be employed then I would expect this to lead to disciplinary action.
It was Mr McKenzie’s evidence that a Team Leader was only required to authorise the closing of an account and transfer of funds and not the opening of an account for funds in the order of $50,000 and above. For amounts below this sum no authorisation was required.
Mr Estcourt said that he had known Mr Tuckett for approximately six years and during their working life together at the Bank they had shared a good personal relationship and he regarded Mr Tuckett as a good mate. Mr Estcourt denied that he had ever instructed Mr Tuckett to close a GoalSaver account and replace it with two new GoalSaver accounts in order to boost sales. He further stated that although there was discussion and coaching concerning various Bank products and sales drives, he disputed that the practice of closing and opening GoalSaver accounts was either discussed or authorised at any team meetings that he had attended. Nor was Mr Estcourt aware that Mr Tuckett was engaging in such a practice. Whilst Mr Estcourt accepted that the practice may have been occurring, particularly if requested by a customer, it was his evidence that this practice was not proactively promoted when the main benefit was realised by the client services representative by increasing their sales number and potential bonus payment.
Mr Estcourt confirmed that a Team Leader was not required to authorise the closure of an account and that authorisation was only required for the transfer of funds above a certain limit rather than for the opening of an account.
Luke Freeman
Luke Freeman was Mr Tuckett’s Team Leader in the Bank’s call centre for a period of time. It was his evidence that he never instructed Mr Tuckett in the practice of offering to close an existing GoalSaver account and replace it with new accounts nor was it a practice that was permitted by the Bank or discussed or authorised at any team meetings that he attended. In his written statement he said:
During the time that I acted as Team Leader I was unaware of any such practice taking place in the call centre. I only became aware of the practice after the issue was raised with Aaron, but I had left the role of Team Leader by that time and when I spoke with him on 30 December 2014 he didn’t mention in that meeting that I had or another Team Leader had told him to close accounts.
Mr Freeman agreed that he may have co-authorised a transfer of funds for clients of Mr Tuckett and may not have enquired as to the reasons for the transfer. He confirmed that Mr Tuckett did not require co-authorisation to open an account and unless Mr Tuckett had informed him of the purpose of the transfer, he would not have known that the new account was replacing a closed account.
Mr Freeman’s recollection of the meeting convened on 30 December 2014 with Ms Ranger when the issue of Mr Tuckett’s practice of closing and opening GoalSaver accounts was discussed was that it was not “a real full on meeting” but more in the form of a discussion about his overall performance. He said that it was not in any way “an aggressive meeting” but “more or less, we’ve uncovered this. Just be mindful of the Bank’s policy around this. Moving forward, we don’t want to see it happen again.” It was Mr Freeman’s evidence that prior to the meeting he had a quick conversation with Ms Hurd prior to her going on leave on 19 December in relation to a formal warning regarding the uncovering of the GoalSaver practice. He did not recall Ms Hurd referring to the practice as “unethical selling”.
Mr Freeman confirmed that he had prepared the formal warning discussion notes following the meeting which were signed by himself, Ms Ranger and Mr Tuckett on 30 December 2014.[1] Mr Freeman was cross-examined by Ms Schokman in relation to the contents of the discussion notes. He agreed that part of the Purpose Statement was inaccurate with respect to “required legislation requirements” in that the meeting was concerned with “processes”. The Purpose Statement read “The purpose of this meeting was to discuss with Aaron recent exceptions and behaviours in relation to his sales that fail to comply with the Banks required legislation requirements.”
[1] Supplementary T documents, p 5.
The exceptions identified through routine call monitoring was stated as:
3 calls reviewed where Aaron proactively offered to close the customer account and open a new account; 2 customers called to earn more interest and the correct process wasn’t offered; 9 calls reviewed through Verint where Aaron failed to read mandated scripting when opening an account.
The Discussion statement went on to state:
I outlined to Aaron his obligations regarding the correct procedure when opening accounts for his customers. Aaron stated that he honestly didn’t believe he was doing the wrong thing by closing Awardsavers and opening Goalsavers as he felt that because he was to giving the customers the option it was ok. Aaron stated that since this has been brought to his attention he is 100% compliant with the correct process when operating GoalSaver accounts.”
The concluding statement records “I advised Aaron that this is unacceptable and he needs to apply himself more in his role as he has been with the Bank for seven years and has participated in many coaching and training session (sic) to know the correct processes.
Emma outlined to Aaron that as this is a formal warning if his behaviour was to continue can (sic) result in the Bank taking disciplinary action, which in serious cases can include the termination of an employee’s employment contract.
It was Mr Freeman’s evidence that Mr Tuckett had not suggested at the meeting on 30 December 2014 that either he or Ms Ranger had coached him in the practice of closing and opening GoalSaver accounts. Mr Freeman said he was unaware of other team members undertaking this practice and first learned of the practice when Ms Barringer approached him after being requested by Ms Hurd to investigate the matter and Mr Tuckett’s allegation that Mr Freeman had coached him regarding this practice.
Emma Ranger
Mr Freeman acted as Team Leader during maternity leave taken by Emma Ranger from February 2014 until the end of September 2014. Ms Ranger has been a Team Leader with the Commonwealth Bank for the past 10 years. It was her evidence that she would convene a team meeting once a week which would run for an hour. The sales representatives would also attend three “huddles” and a trading meeting each week. Each staff member would also have a 30 minute coaching allocation on a weekly basis. Ms Ranger denied that any of these training sessions involved the practice of closing and opening GoalSaver accounts because, she said, it is not an acceptable practice to open an account and replace it with the same account type. It was Ms Ranger’s evidence that the first time this practice was discussed was after it had been identified through call monitoring that Mr Tuckett had engaged in the practice and at the meeting convened on 2 December 2014. Ms Ranger then approached individual members of the team to advise them that this was not an acceptable practice. Ms Ranger said that she was not aware of any other members of the team engaging in this practice. She monitored approximately one call per day for each member of the team of some 14 members and had not come across any other member engaging in this practice during the routine call monitoring.

Ms Ranger confirmed that she was required to co-authorise the transfer of funds from one account to another which was initially those funds above $50,000 and later increased to $100,000. She was not required to authorise the opening of an account. In her written statement Ms Ranger confirmed that Mr Tuckett had raised concerns about the practice of Mr Estcourt and herself calling one another over when they thought they had found an exception within earshot of the other team members. Ms Ranger said that when Mr Tuckett had brought this to their attention they ceased this practice immediately. It was her evidence that the members were advised on the same day that an exception had been discovered.
Ms Ranger confirmed that Mr Tuckett had asked to listen to a call after Mr Estcourt had identified an exception. Ms Ranger advised that after listening to the call the exception was classified as a Category Three (minor) exception where Mr Tuckett had failed to read a script word for word.
Ms Ranger refuted Mr Tuckett’s claim that he had been unfairly treated regarding his request for leave on 19 June 2015 because she said there was no leave allowance available. Mr Tuckett was aware of the leave policy and staff are able to book leave up to 12 months in advance. An application for leave with four weeks’ notice does not always guarantee leave because the hours must be available in the system. On this occasion Ms Ranger had provided Mr Tuckett with the names of other team members who he could approach to swap leave.
In response to Mr Tuckett’s concerns about his job security on account of his contract type, Ms Ranger had advised him that she knew of no issues and that she was also on the same type of contract as Mr Tuckett.
Ms Ranger confirmed that she prepared the diary note at page 52 of the supplementary T- documents which she signed on 30 December 2014. The diary note records under “Type of Exceptions”:
Three calls reviewed where Aaron proactively offered to close the customer’s existing accounts and open new accounts where products which should have been discussed. Nine calls reviewed by MRO where mandated DDA opening scripting was not read word for word in some parts of the script were missed.
Handwritten notes then record that these constituted 15 total breaches in the financial year to date. The three exceptions were identified by Jessica Hurd-Schultz during monitoring. Mr Tuckett had been identified as having a high number of sales and was accordingly selected by the Sydney office for a call monitoring audit.
The Diary Note records that Mr Tuckett had responded that “he did not believe that he was being unethical in closing GoalSavers to open new ones when customers had over $100k in their account and were losing out on money”. Three actions were agreed to be completed by 2 January 2015 and were signed off as complete by Ms Ranger. The actions included further discussions to discuss exceptions, five KATOs around scripting, and the review of two HR calls weekly moving forward.
Above the signatures the following statement was made:
Aaron understands the significance of the above exceptions and has taken on board the feedback and will complete all of the identified actions to ensure that he takes the necessary steps to prevent any breaches in the future. Ivett (sic) understands what is required when reading/promoting products.
Ms Ranger confirmed that when she informed Mr Tuckett that Ms Hurd had discovered several breaches following an audit of his telephone calls with respect to the GoalSaver accounts, he had said that managers had condoned the practice and that it was part of the “Big 5 actions”. Ms Ranger said that she was unable however, to find any meeting records to confirm Mr Tuckett’s claim. Ms Ranger had advised Mr Tuckett prior to the meeting that he should “just look after yourself. Be honest”. She disputed advising him “not to rock the boat”. Ms Ranger said that she gave Mr Tuckett 24 hours notice as required for an informal meeting and that he could bring along a support person. She also believed that she advised him about the unethical nature of the alleged breaches.
At the meeting convened with Ms Hurd on 2 December 2014 Ms Ranger recalled that Mr Tuckett raised concerns about being labelled an “unethical seller” and identified Luke Freeman as having been one of the Team Leaders who had suggested the practice at the “Big 5” meetings. It was Ms Ranger’s recollection that Ms Hurd was very firm in her conversation with Mr Tuckett but she did not recall that Ms Hurd’s voice was specifically raised or that there was any yelling. Ms Hurd had advised Mr Tuckett that he could face serious disciplinary action as a consequence of this practice.
It was Ms Ranger’s evidence that following the meeting Mr Tuckett approached her and said that he wished to apologise to Ms Hurd for his behaviour during the meeting.
Ms Ranger confirmed in cross-examination that she was aware how stressful the period leading up to the meeting on 2 December 2014 had been for Mr Tuckett and that he was concerned about possible termination. She confirmed that in a discussion with Mr Tuckett following the meeting on 2 December that Mr Tuckett was upset “about how the meeting had taken place”. It had been agreed that within 24 to 48 hours of the meeting Mr Tuckett’s response that other members had engaged in the same practice of closing accounts and replacing them with the same accounts would be investigated. Ms Ranger said that she had advised Ms Hurd during the meeting that she was not aware of anyone else having engaged in the same practice of closing GoalSaver accounts and replacing them with other accounts. Ms Ranger confirmed that until the practice was discovered by Ms Hurd, she was unaware of it.
Ms Hurd was not aware that any notes of the meeting on 2 December had been made other than Ms Hurd’s diary note which was tendered in evidence.[2] Ms Hurd could not recall the discussions that took place following the meeting on 2 December 2014 but recalled that both Mr Tuckett and Ms Hurd went on leave.
[2] Exhibit R9.
Ms Ranger confirmed that she was present at the meeting with Mr Tuckett on 22 February 2015 which was convened by David Rendo (who had replaced Ms Hurd). Ms Ranger advised that she had prepared the “Verbal Warning Discussion Notes” relating to the meeting.[3] The stated purpose is recorded as “to discuss with Aaron recent allegations of exceptions of the Statement of Professional Practice and exceptions of the Bank’s policy regarding failing to follow the Banks mandatory identification procedure”.
[3] Supplementary T documents, p 78.
It was alleged that Mr Tuckett had failed to comply with legislation, Bank procedure and the minimum standards of conduct with respect to a listed number of exceptions dating from 12 August 2014 until 24 February 2015. It was accepted by Ms Ranger that a number of these exceptions had previously been dealt with at earlier counselling sessions. She also accepted that the terminology in the Purpose Statement of “fail[ure] to follow the Bank’s mandatory identification procedure” was incorrect. Ms Ranger also agreed that some of the details were incorrect, for instance, the recorded dates. Further there were no supporting documents for some of the exceptions. It was Ms Ranger’s evidence that the number of exceptions identified for Mr Tuckett for this particular year was a lot higher than for other members of the team. Ms Ranger recalled that Mr Tuckett had recorded some 20 to 21 exceptions for the particular financial year and that the next highest level of exceptions recorded for another member of the team would have been around 13 or 14.
David Rendo
David Rendo is currently in the role of Contact Centre Manager Sales and Service and has been employed by the Commonwealth Bank of Australia since April 2004. Mr Rendo replaced Ms Schultz-Hurd in this role in Hobart in late January 2015. Part of Mr Rendo’s duties includes the review and monitoring of sales representatives calls. He stated that every leader is required to assess one high-risk call per week. Mr Rendo said that he could not recall Mr Tuckett ever contesting an exception and none had ever been brought to his attention.
It was Mr Rendo‘s evidence that he listened to approximately 100 calls each week and that his call monitoring had not disclosed an instance of any other sales representative having closed a GoalSaver account and replacing it with two new GoalSaver accounts in order to save interest for a client. Mr Rendo suggested that an acceptable option would be for the sales representative to approach their manager to seek an override of the interest non-payment in appropriate circumstances. With respect to Mr Tuckett’s action in closing the branch account for which a “stop” action was recorded and opening a new account, he suggested that the first logical step would have been to contact the branch Bank to enquire as to why the “stop” had been placed on the account if this was not explained on the available records. Mr Tuckett could then have approached his Team Leader to ascertain the reason for the “stop” on the account. By closing the account and opening a new account Mr Tuckett would have recorded a new sale which would have replaced the original sale recording for the branch operator.
Mr Rendo disputed that he said to Ms Ranger “you need to get onto that” after noticing that Mr Tuckett had no sales recorded against his name on the whiteboard. He said that he would have been surprised because Mr Tuckett had a zero rating on the board after a Monday shift which was a week to date result. As Mr Tuckett was known as a high performing sales agent, Mr Rendo said that he would simply have shown curiosity as to why no sales had been recorded.
Mr Rendo recalled the meeting with Mr Tuckett in February 2015 shortly after assuming his management role. He noted that at the time Mr Tuckett had recorded 16 exceptions for the financial year to date. He felt it appropriate to “understand the breakpoints” and offered his support and decided not to progress with a formal warning. He recalled that Mr Tuckett left the meeting and advised Ms Ranger “that’s how a meeting/discussion should be conducted/held”. It was his opinion that Ms Ranger had shown enormous support to Mr Tuckett throughout her tenure as his leader and said that he had never received a complaint regarding her approach, management style or her leadership. He said that Ms Ranger is known as being engaging, understanding and supportive.
Mr Rendo noted that Mr Tuckett had a total of 20 exceptions at the time of his departure and that “exceptions were occurring consistently from September 2014 through to June 2015”. It was Mr Rendo’s evidence that:
each exception is addressed via a discussion where clear context and purpose is provided, additional training/coaching is applied where required and additional inspection is undertaken to ensure correct behaviour is being executed and reinforced. This is far in excess of any of his peers across the business, actually is the highest contributor to this area in Hobart last financial year. I think this alone shows how tolerant and supportive we have been as a management team.
Jessica Schultz-Hurd
It was Ms Hurd’s evidence that Mr Tuckett was given 24 hours notice of the meeting to be convened on 2 December 2014 and was advised that he could be accompanied by a support person. She said that the meeting convened on 2 December 2014 was to discuss not only the opening and closing of GoalSaver accounts but also the high number of exceptions identified from the call monitoring. Ms Hurd informed Mr Tuckett at the meeting that in all the nine calls that she had reviewed for him (one call had two accounts), exceptions had been identified. For instance, in all 10 account openings Mr Tuckett had not complied with mandatory scripting requirements by either changing or missing words and on some occasions all sections of mandatory scripting had been missed. In two of the calls Mr Tuckett had proactively offered to assist the customer by opening two new GoalSaver accounts to avoid losing interest. On another occasion when a customer had called and requested to open a savings account, Mr Tuckett failed to advise the customer that he already held the same product. In a further call a customer advised that they had not received the card to the new account and instead of cancelling the card and reissuing a new card to the existing account, Mr Tuckett closed the account and opened a new one with no clear benefit to the customer.
In response to the scripting issues Mr Tuckett had advised that he understood that it was suggested scripting only and not mandatory. He was asked why he read the scripting on some calls and not others and responded that at times it was due to him “getting distracted”. Mr Tuckett also admitted to using his own wording at times which he put down to “human error”. Ms Hurd stated that Mr Tuckett’s explanation for opening the GoalSaver account was that he did this to benefit the customer to avoid their losing interest on funds when withdrawing money from the account. Ms Hurd explained to Mr Tuckett that the way the GoalSaver account operates is for the customer to grow their balance and reward them for saving. Withdrawals from the account reduce the balance which means they lose bonus interest and that this is the way the account is set up and staff should not be proactively offering to assist customers “to get around the way the account operates” by offering to close accounts and open new ones.
Mr Tuckett had informed her that he was advised by his Team Leader Luke Freeman to proactively offer to close accounts and open new ones and that the whole team was doing this to assist with DDA sales. This was an action as part of a “Big 5” focus on increasing sales. Ms Ranger responded that she was not aware of this action and nor did she know of staff undertaking this practice and that it was not a behaviour she would encourage. At this point Mr Tuckett appeared frustrated and maintained that the closure and opening of a new account and transfer of funds required the co-authorisation by the Team Leader. Ms Ranger advised that in authorising the transfer of funds, it would not be apparent that a new account had been opened to replace an existing account.
Ms Hurd stated that she explained to Mr Tuckett that:
the behaviour of opening new accounts to replace existing accounts is not an acceptable behaviour in the business and he needed to cease doing this immediately. This type of behaviour can be perceived as a form of unethical selling due to it benefiting his sales performance and can be quite serious disciplinary action where this is found to be done intentionally by staff for this reason.
I explained to Aaron at the end of the meeting I would now need to consult with our Executive Manager on the responses he has made to the allegations in regards to exceptions and his behaviour around opening DDA accounts and would organise a follow-up meeting to go through the outcome of this investigation and the consequences for his actions which may result in a formal and/or verbal warning. Aaron advised that he had a TTL day the next day.
Ms Hurd confirmed that the only notes of the meeting were her brief diary notes recording Mr Tuckett’s responses. Following the meeting Ms Hurd asked Felicity Barringer to follow-up on Mr Tuckett’s responses regarding the GoalSaver account practices. Ms Hurd understood that Ms Ranger also enquired of other team members as to whether they were aware of the practice and Luke Freeman was asked for his response. Mr Freeman advised that he had not instructed or suggested that team members undertake the practice of closing and opening new GoalSaver accounts in order to boost their sales.
Ms Hurd recalled that Ms Ranger had informed her that the day following the meeting Mr Tuckett had discussed the meeting with her later that evening and was apologetic for his behaviour during the meeting. She said that later that week Mr Tuckett approached her in her office and apologised for his manner during the meeting. He stated that he did not mean to behave in this manner or speak to us the way he did. Ms Hurd acknowledged Mr Tuckett’s apology and explained that as they were both going on leave she would arrange for Mr Freeman to hold the follow-up meeting when Mr Tuckett returned from leave.
When completing the handover, Ms Hurd advised Mr Freeman that the outcome Felicity Barringer had approved based on Mr Tuckett’s responses was a formal warning and to set up a formal meeting upon Mr Tuckett’s return to work.
It was Mr Hurd’s evidence that:
At no time did Aaron raise any concerns with me in regards to the meeting or in light of how the meeting went nor did he approach my manager to raise any concerns. Within the business there is the opportunity for staff to raise concerns to higher management and Felicity Barringer could have been approached if Aaron wished to raise his concerns.
Ms Hurd agreed that she had been firm in her manner with Mr Tuckett during the 2 December meeting but disagreed that she had raised her voice. She said that Mr Tuckett’s voice was raised and it was clear that he was becoming frustrated during the meeting. Ms Hurd did not believe that Mr Tuckett was advised that his employment could be terminated as a result of his actions and said that she would be unable to make this call without having it approved by management. It was her recollection that he was given a warning. It was Ms Hurd’s evidence that Mr Tuckett appeared relaxed when he visited her in her office following the meeting to apologise for his behaviour. It was during this conversation that Ms Hurd advised Mr Tuckett that the outcome that Felicity Barringer had approved based on Mr Tuckett’s responses was a formal warning and that a formal meeting would be set up following Mr Tuckett’s return to work. This meeting was convened by Mr Freeman and Ms Ranger on 30 December 2015.
CONSIDERATION AND FINDINGS
In its amended statement of facts issues and contentions, at paragraph 9 the respondent set out a history of relevant workplace events. The respondent contended that a number of these events either constituted reasonable counselling or administrative action that were undertaken in a reasonable manner and contributed to the applicant’s injury. In her closing submissions Ms Schokman submitted that most of the listed workplace events were “operational actions”, that is, part of the day to day business of the Bank and did not constitute “administrative action” in respect of the applicant’s employment. Further, that there is insufficient evidence to support a finding that any of the listed workplace events were causative of the applicant’s injury.
The relevant evidence with respect to these events is outlined above. There was largely no dispute about the nature of the events and Mr Tuckett conceded that he was counselled on numerous occasions regarding “exceptions” or breaches” with respect to his telephone sales work. It was submitted by Ms Schokman that the only workplace events listed in the respondent’s statement that constituted “administrative action” in respect of the applicant’s employment were the meetings convened in December 2014 and on 26 February 2015. However it was contended that there is no evidence that these meetings were causative of the applicant’s injury. The applicant maintains that whilst the meeting held on 26 February 2015 constituted administrative action with respect to the applicant’s employment, Mr Tuckett had expressed approval after the meeting with the way in which it had been conducted and there is no evidence that it was causative of his injury. In the alternative, if the Tribunal accepts that these events were causative, the applicant submits that the administrative action was unreasonable and was undertaken in an unreasonable manner such that it would not satisfy the provisions of s 5A of the SRC Act.

The term “suffered as a result of” reasonable administrative action appearing in s 5A necessarily imports a consideration of whether the administrative action was causative of the applicants injury/disease. This issue of causation was considered by the Full Court of the High Court in Comcare v Martin (2016) 258 CLR 467 (Comcare v Martin) which said at paragraph 45:
When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.
And further at paragraph 47:
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion ins 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 s5A(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.
The High Court’s reasoning was applied by the Full Court of the Federal Court in Lim vComcare (2017) 154 ALD 413. In this case only employment related factors were identified as contributing to Dr Lim’s ailment. The Full Court found that the Tribunal ‘s failure to address the question as to whether or not Dr Lim would have suffered the adjustment or disorder if the performance appraisal had not been made constituted an error of law. At paragraph 45 the Full Court stated:
We observe that in a different case, where both employment and non-employment factors are posited as contributing to an ailment or an aggravation of such an ailment (within the meaning of s 5B(1)), in order to determine whether s 5B applies, a finding would need to be made as to whether the ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. If there were an affirmative finding, then the further questions would arise as to whether or not there was reasonable administrative action taken in a reasonable manner; and, if so, whether or not the disease would have been suffered by the employee if that action had not been taken. If the Tribunal were so satisfied, then the exclusion to the definition of “injury” in s 5A(1) would apply.
In this case the respondent has accepted that Mr Tuckett’s psychological ailment was contributed to a significant degree by his employment. This concession has been made on the basis of available medical evidence and in particular the report from Dr Farnbach. In his report dated 31 August 2015, Dr Farnbach opined “[t]he history provided by Mr Tuckett is consistent with the view that the workplace issues described above have precipitated his illness”. The workplace history provided by Mr Tuckett and outlined in Dr Farnbach’s report is, essentially, not in dispute. Dr Farnbach states that Mr Tuckett had told him that he had been employed in the call centre of the Bank for approximately eight years and that he had always enjoyed the work. However from the middle of last year “everything changed” and there was more pressure to make sales, he became increasingly fearful of losing his job. Dr Farnbach reported that Mr Tuckett had told him that in December he was reprimanded for unethical selling, that he had been made an example of and was told verbally there was ground for instant dismissal. Dr Farnbach went on to state:
Mr Tuckett told me that from that point he became increasingly anxious and fearful. As noted above, he had previously been concerned that his more generous contract might result in his dismissal. He said that he worried that they were “looking for the trigger that would allow them to dismiss me”.
Stephen Josephs, clinical psychologist, in a report to Mr Tuckett’s general practitioner, Dr Eric Colquhoun, reported on 28 August 2015 that Mr Tuckett met the diagnostic criteria for major depressive disorder and post-traumatic stress disorder. Mr Josephs went on to state:
workplace issues are the primary source of stress for him at this time; his depression is secondary to this stress. In his workplace, there has been a significant change in the workplace culture and management approach. Aaron reports unclear guidelines, increased performance scrutiny, being increasingly micromanaged and unsupported and a cohort of colleagues/friends who have left the CBA. Aaron is left feeling his career in the CBA and wider banking sector is compromised. Returning to the CBA is untenable; he needs to either quit the CBA or submit a Worker’s Compensation Claim.
Other medical reports contained in the T documents, namely from the Rosny Park Family Practice and a counsellor with Davidson Trahaire Corpsych, also refer to Mr Tuckett’s descriptions of the workplace incidents that he considered contributed to his psychiatric condition. There was also evidence in relation to the family pressures that Mr Tuckett was experiencing around the time of his panic attack on 2 June 2015. Mr Tuckett himself informed Ms Ranger of the family issues that he was facing concerning his wife’s desire to move to New South Wales to provide a better special education opportunity for their two eldest children who were on the autism spectrum and further, that his father-in-law was in the process of arranging transport to New South Wales.
Whilst family issues may also have contributed to Mr Tuckett’s injury, the Tribunal accepts the evidence and the respondent’s concession that workplace issues contributed to Mr Tuckett’s ailment to a significant degree and so constituted a “disease” within the definition of that term in s 5B of the SRC Act. Unless it was the result of administrative action of the kind referred to in the exclusion in s 5A(1), the condition constituted an “injury” for which the respondent is liable to pay compensation pursuant to s 14(1) of the SRC Act. The Tribunal must accordingly determine whether there was reasonable administrative action taken in a reasonable manner and if so, whether the ailment would have been suffered by Mr Tuckett if that action had not been taken.
Administrative Action
Justice Gray in the Full Federal Court decision in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 considered the character of “administrative” action, contrasting the concepts of “administrative” and “operational” action, and said at paragraphs 30-31:
[t]he 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.
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 institutional 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 is operational action with respect to the employee’s employment.
At paragraph 74 of the same decision, Rares and Tracey JJ, after considering the purpose of s 5A and noting that Parliament had intended that an employer would be freer to deal with an employee by taking disciplinary action or dealing with the employee in respect of his or her employment than had been the case previously, went on to state:
[h]owever, the Explanatory Memorandum did not suggest that “administrative action” was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.
Consistent with the above reasoning, the Tribunal finds that the counselling actions and formal disciplinary actions regarding Mr Tuckett’s breaches and exceptions identified through the telephone call monitoring related to the performance of his employment duties with respect to the employment relationship between Mr Tuckett and the Bank. The Tribunal does not consider that such actions could be termed operational in the sense that they related to the way in which Mr Tuckett was to perform his duties. The counselling and disciplinary actions followed the identification of failures in the way Mr Tuckett was undertaking his duties and could not be considered matters of mere instruction or direction as to the performance of those duties.
The question remains as to which, if any, of those administrative actions were causative of Mr Tuckett’s injury in that the injury would not have been a disease in the absence of the administrative action. As the High Court said in Comcare v Martin, the administrative action need not be the sole cause. The Tribunal is not persuaded that the applicant’s employment was indeed the sole cause of his ailment and refers to the substance of Mr Tuckett’s conversation with Ms Ranger at the time of his “panic attack” on 2 June 2015 when he requested permission to go home.
It is the applicant’s contention that the only factor described by Dr Farnbach which might constitute administrative action taken in respect of Mr Tuckett’s employment with the respondent was the event which took place in December and described by Mr Tuckett as “I was reprimanded for unethical selling” (the December 2014 event). However the applicant maintains that there is no evidence, or no sufficient evidence, that the December 2014 event contributed to the applicant’s injury to a significant degree. However if the Tribunal does not accept this proposition, the applicant maintains that the action was not “reasonable administrative action” because the applicant was reprimanded for an action which he had been previously advised that he could take and which he knew or believed to be a common practice in the workplace; and/or the applicant was reprimanded for taking action which was to benefit banking customers and which he had not been previously advised he should not take. Further, the action was not taken in a reasonable manner because the applicant was told that his action could lead to instant dismissal contrary to the respondent’s guidelines for managing performance; and/or the applicant had to wait from 2 December 2014 to 30 December 2014 to learn that not only would he not be dismissed but that there would be no sanction for taking the action.
Firstly the Tribunal agrees that there is no persuasive evidence that, apart from the December 2014 event, any of the other counselling or disciplinary actions taken by the respondent with respect to the applicant’s employment contributed to his injury. Mr Tuckett’s injury is a psychiatric injury for which causation is primarily a matter of expert opinion. For these reasons the evidence of Dr Farnbach, a consultant psychiatrist, is the preferred medical evidence. The medical reports submitted from Mr Tuckett’s general practitioner and psychologists are not as probative in their value because the history was taken for the purpose of treating Mr Tuckett’s illness rather than forensically examining the issue of causation.
As previously noted, the Tribunal has accepted the evidence of Dr Farnbach that the workplace issues described by Mr Tuckett and outlined in Dr Farnbach’s report precipitated Mr Tuckett’s illness. The only workplace issue that Dr Farnbach identified as being causative of Mr Tuckett’s illness that constituted administrative as opposed to operational action was the reprimand for unethical selling – the December 2014 event. Dr Farnbach reports that after being reprimanded in December for unethical selling:
from that point he became increasingly anxious and fearful. As noted above, he had previously been concerned that his more generous contract might result in his dismissal. He said that he worried that they were “looking for the trigger that would allow them to dismiss me”.
The other medical reports referred to above largely detail the applicant’s reports as to the workplace issues that he considered were contributing to his illness and are of little assistance in determining the issue of causation.
On the basis of the above evidence contained in Dr Farnbach’s report of 31 August 2015, the Tribunal is satisfied that the December 2014 event was causative of Mr Tuckett’s injury and constituted administrative action within the meaning of s 5A(1). Accordingly the Tribunal must determine whether the administrative action was reasonable and if so, whether it was taken in a reasonable manner in respect of the applicant’s employment.
Reasonable administrative action
The applicant contends that the administrative action was not reasonable because it related to a procedure that he had been instructed to follow by team managers and was common practice in the workplace. It is also contended that the practice benefited customers of the Bank in avoiding loss of interest for them on their accounts for that month.
None of the Team Leaders named by Mr Tuckett as having promoted the practice corroborated Mr Tuckett’s evidence. Indeed it was their evidence that they were not aware of the practice until it was identified by Ms Hurd following her monitoring of some of Mr Tuckett’s telephone calls with customers. The evidence given by the respondent’s witnesses with respect to the GoalSaver account was that its purpose was to reward customers by encouraging them to save with a monthly deposit of $200 in order to achieve their savings goal of $100,000. They disputed that they would have encouraged members of the team to suggest that customers close the account prior to reaching the $100,000 balance and open two new accounts in order to save the loss of interest resulting from a withdrawal from the account.
It was Mr Tuckett’s evidence that the requirement for team managers to authorise the transfer of funds of over $10,000 meant that they were aware of this practice with respect to the GoalSaver accounts. The corroborated evidence was however that this authorisation was only required for transfers of initially $50,000 and above which was later increased to $100,000, and that team managers did not routinely enquire as to the reason for the transfer.
The only witness called by Mr Tuckett who supported his evidence was Georgia Melvyn who claimed that she also followed the practice of closing a GoalSaver account and replacing it with new accounts to avoid the loss of interest for customers. Ms Melvin maintained that it was “a common practice throughout the centre”. Ms Melvin also named Luke Freeman and Emma Ranger as the Team Leaders who had promoted the practice. Ms Melvin agreed that Ms Ranger had not been involved in staff training following her return from maternity leave.
Ms Melvin said that she had first learned of the practice from another team member but was unable to name that person. Ms Melvin also said that she had no recollection of the team being informed that the practice should cease and she maintained that she continued the practice until around October 2015 when she moved from Sales to the Service Division.
Despite the regular monitoring of telephone calls, there was no evidence that the practice of “unethical selling” was identified in the calls monitored for Ms Melvin. The Tribunal has some difficulty in accepting certain aspects of Ms Melvin’s evidence. For instance, she maintained that she continued the practice up until October 2015 and did not recall the team being informed that the practice was to be discontinued. It was Mr Tuckett’s evidence however, that following Ms Hurd’s discovery of the “unethical selling” practice, the team was advised by Ms Ranger that anyone undertaking the practice should cease to do so immediately. He said that following his reprimand he ceased the practice and became “100% compliant”. Ms Melvin maintained that another member of the team had suggested the practice to her but could not recall who this was. She provided little persuasive evidence that it was in fact encouraged at team meetings. Ms Melvin agreed that she was not a very successful salesperson and it is likely that there were few occasions when she was able to persuade a customer to close a GoalSaver account and replace it with two new accounts.
Whilst the Tribunal is inclined to accept that some Team Leaders may have been aware that a member or members of the team were undertaking the practice of “unethical selling”, the Tribunal is not persuaded that the practice was encouraged or promoted at the regular team meetings. The Tribunal accepts that Mr Tuckett was understandably upset and shocked when he was approached by Ms Ranger in October 2014 and advised that Ms Hurd had identified this practice as a breach during her monitoring of his telephone calls. Mr Tuckett did not understand how the practice could be labelled “unethical selling” when it resulted in the saving of interest for Bank customers.
Witnesses called on behalf of the respondent maintained that Mr Tuckett’s sole reason for engaging in the practice was to boost his sales records for the purpose of receiving bonus payments. It was Mr Tuckett’s evidence that there was a lot of pressure on team members to achieve their sales targets. The Tribunal accepts that the primary reason for Mr Tuckett undertaking the practice of closing a GoalSaver account and replacing it with two new accounts was to achieve his sales targets. When he was prevented from continuing the practice, he became increasingly concerned about his failure to achieve his sales targets which the Tribunal considers was a contributing factor in his illness.
On the basis that the Tribunal has found that the practice of “unethical selling” was not promoted or encouraged by the team members, the Tribunal does not accept that the administrative action taken in response to the discovery of the practice was unreasonable in the circumstances. Nor does the Tribunal accept that this practice was commonly undertaken by other members of the team. There was no corroborative or persuasive evidence that this was the case. Given the purpose for the GoalSaver accounts (as outlined above) the Tribunal accepts that Ms Hurd was understandably distressed when she discovered that Mr Tuckett was engaging in this practice. The Tribunal considers that her actions in convening a meeting to discuss and reprimand Mr Tuckett for the practice of “unethical selling” were reasonable administrative action. The Tribunal also accepts that Ms Hurd’s reason for delaying the convening of the meeting on 2 December 2014 was to enable time for further enquiries to be made and for Ms Hurd to review Mr Tuckett’s calls from the previous months, particularly given his record of a high number of exceptions.
Taken in a reasonable manner

The remaining issue is whether the administrative action concerning this practice was “taken in a reasonable manner”. It was submitted on behalf of the applicant that there was a lack of proper procedure with respect to the convening of the meeting on 2 December 2014 in that Mr Tuckett was not given adequate notice and information by management prior to the meeting.
The Tribunal accepts Ms Ranger’s evidence that Mr Tuckett was given 24 hours notice of the meeting and asked whether he wished to have a support person present. He declined this offer as he did not consider it necessary, understanding that Ms Ranger, a trusted friend, would be present. It was not intended that this meeting be a formal meeting or that any decision would be made until further investigations had been carried out. It appeared that the purpose of the meeting was to provide Mr Tuckett an opportunity to respond to the exceptions identified, the most serious of which being the practice with respect to the GoalSaver accounts about which he had been previously made aware by Ms Ranger.
Mr Tuckett did not raise any concerns regarding the format of the meeting at the time, nor in any following discussions with Ms Hurd or Ms Ranger. In the circumstances, the Tribunal does not accept that the respondent failed to provide Mr Tuckett with adequate notice or adequate information prior to holding the meeting.
It was Mr Tuckett’s evidence that it was “a brutal meeting”, very intimidating and that he was “made to feel like a criminal”, like he was stealing from the Bank. He was most distressed at being accused of “unethical selling” and was reminded that this was grounds for instant dismissal. Although Mr Tuckett maintained that Ms Hurd’s style was very aggressive, he agreed under cross-examination that her aggression was not personally directed at him but came across in her day-to-day interactions with the team.
Mr Tuckett said that he was also counselled in relation to other breaches and his responses were noted by Ms Hurd who undertook to have further enquiries undertaken with respect to his responses. It was Ms Hurd’s evidence that exceptions had been identified in all of the nine calls that she had reviewed for Mr Tuckett (with one call involving two accounts).
Mr Tuckett said that he was particularly upset when Ms Ranger advised Ms Hurd that she had no idea about the practice of closing and opening GoalSaver accounts. He maintained that she was “more than aware of it” and used her smartcard and password to authorise the closure of accounts and transfer of funds. As outlined above however, the Tribunal accepts the evidence that such authorisation was not necessary for the closure of accounts and did not mean that the Team Leader was necessarily aware of the reason for the transfer.
Although the Tribunal is not convinced that Ms Ranger was previously unaware of this practice undertaken by Mr Tuckett with respect to the GoalSaver accounts, the Tribunal does not accept that it was a practice that was promoted or authorised by her, but perhaps implicitly condoned. It was Mr Tuckett’s evidence that following the meeting he informed both Mr Estcourt and Mr Freeman that he had advised Ms Hurd that they had authorised the GoalSaver practice of closing and opening new accounts. The Tribunal has some hesitation in accepting this evidence because Mr Tuckett said that he was unable to recall the conversation and their responses, particularly whether they had either denied or accepted what he had said.
The Tribunal accepts that Mr Tuckett’s manner during the meeting indicated that he was distressed and that following the meeting he approached Ms Ranger regarding his behaviour and later apologised to Ms Hurd. The Tribunal does not accept that Mr Tuckett would have made these approaches if he considered that the administrative action in the form of the meeting had been undertaken in an unreasonable manner. The Tribunal also accepts Ms Hurd’s evidence that as well as apologising for his behaviour, Mr Tuckett did not raise any concerns in regards to the meeting.
The evidence was that Mr Tuckett had attended a number of meetings that were convened in order to discuss his breaches/exceptions and that on no occasion did he suggest that such meetings were undertaken in an unreasonable manner. The evidence was that despite his length of service with the Bank and his record as a high sales achiever, Mr Tuckett had a higher number of exceptions than most of the other members of the team. The evidence suggests that Mr Tuckett did not consider the nature of the breaches/exceptions to be particularly serious and it was not until he was accused of “unethical selling”, for which he could face dismissal, that he realised the seriousness of his position and which understandably caused him considerable distress.
It was also contended by the applicant that the delay in the holding of the follow-up meeting on 30 December 2014 was unreasonable because in the meantime Mr Tuckett was unsure of the future of his employment with the Bank. The evidence was that in the meantime Ms Hurd would follow-up the responses from Mr Tuckett with respect to the exceptions raised against him and consult with the Executive Manager. The Tribunal accepts the evidence that Mr Tuckett went on annual leave from 8 December 2014 for a period of some 10 days and Ms Hurd took leave from 19 December 2014 for the rest of the month.
The meeting on 30 December 2014 was convened by Luke Freeman, the Team Leader named by Mr Tuckett in his discussions with Ms Hurd as having condoned “the unethical selling practice”. The evidence was however that Mr Tuckett did not take issue with the meeting being convened by Mr Freeman, which he described as being “pretty informal”. It was his evidence that he was essentially told “to forget about it, like it was being swept under the rug, sort of thing, and it was like a tap on the wrist”. Mr Tuckett described the meeting as “a good meeting” and whilst not happy at having being labelled as having engaged in “unethical selling”, was relieved that he still had his job. The Tribunal finds it curious that Mr Tuckett did not raise with Mr Freeman the fact that he had authorised and indeed promoted the “unethical selling” practice during the team meetings and accordingly is not satisfied that Mr Freeman had done so.
Whilst the Tribunal accepts that Mr Tuckett was understandably distressed during the time between the first meeting on 2 December 2014 and the subsequent meeting with Mr Freeman on 30 December 2014, it considers that in the circumstances these meetings were undertaken in a reasonable manner. The Tribunal does not accept that the inaccuracies in the documentation prepared prior to and following the December meetings were particularly serious, such that they impacted on the reasonableness of the administrative action undertaken by the respondent. They were not raised by Mr Tuckett as having any impact on the conduct or outcome of the meeting. The inaccuracies were first identified by the Tribunal during the course of the hearing.
There was also evidence concerning a meeting between Mr Tuckett and Mr Rendo in February 2015 with respect to his large number of exceptions. It was not suggested however that this meeting was in any way causative of Mr Tuckett’s injury and the evidence was that Mr Tuckett was satisfied with the way in which the meeting was conducted.
CONCLUSION
For the above stated reasons and in accordance with the above findings, the Tribunal concludes that the meeting convened by the respondent on 2 December 2014 and the follow-up meeting on the 30 December 2014 were administrative action which contributed to a significant degree to Mr Tuckett’s psychological injury. These meetings however, were reasonable administrative action taken in a reasonable manner in respect of Mr Tuckett’s employment. The injury is thereby excluded from the definition of “injury” in s 5A of the SRC Act and accordingly, the respondent is not liable to pay compensation under s 14 of the SRC Act.
The decision under review is accordingly affirmed.

I certify that the preceding 135 (one hundred and thirty five) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member and Dr R Walters, Member

..........................[sgd]............................
Administrative Assistant - Legal
Dated: 15 August 2017

Date(s) of hearing: 8-10 May 2017; 19-20 & 28 June 2017

Counsel for the Applicant: Ms Christine Schokman, Ogilvie Jennings

Counsel for the Respondent: Mr John Wallace

[2017] AATA 1274

15 August 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Negligence

Remedies

Procedural Fairness

Date(s) of hearing:	8-10 May 2017; 19-20 & 28 June 2017
Counsel for the Applicant:	Ms Christine Schokman, Ogilvie Jennings
Counsel for the Respondent:	Mr John Wallace