Wieczorek and Comcare (Compensation) - [2017] AATA 994

Wieczorek and Comcare (Compensation) [2017] AATA 994 (27 June 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )  No: 2016/0355
GENERAL DIVISION  )
Re: Anna Wieczorek
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:               Deputy President Gary Humphries
DATE:   4 July 2017
PLACE:                     Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

at paragraph 6(a), the date “27 March 2015” be replaced with “27 March 2014”;

at paragraph 94, in the fourth sentence of paragraph 94, line 8 of paragraph 94, the word “Comcare” be replaced with the words “the employer”;

at paragraph 94, in the fourth sentence of paragraph 94, line 9 of paragraph 94, the passage which reads “if it wishes to claim the exemption” the word “it” in that passage be replaced with the word “Comcare”.

....................[sgd]...............................................
Gary Humphries
Deputy President
Division:GENERAL DIVISION
File Number(s): 2016/0355
Re:Anna Wieczorek
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:27 June 2017
Place:Canberra

The Respondent's decision of 20 January 2016 is set aside, and instead the Tribunal finds that the Applicant suffered an injury, pursuant to s 14 of the Act, on or about 21 May 2015.
.......................[sgd].................................................
Deputy President Gary Humphries
Catchwords
WORKERS COMPENSATION – psychological injury – whether new injury – whether aggravation of previous injury – administrative action - whether administrative action taken in respect of employment – whether administrative action reasonable – whether administrative action carried out in a reasonable manner – causal link between administrative action and compensable condition must exist – broad departmental actions not administrative action in relation to employment for purposes of section 5A – reasonable administrative action need not be ‘perfect’ administrative action – failure by employer to adhere to departmental Managing Underperformance document constitutes administrative action not reasonably taken – unreasonable action on part of employee not relevant – decision set aside in part.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No2) 302 ALR 608
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Findlay and Comcare [2013] AATA 324
Lee and Comcare [2012] AATA 867
Lim and Comcare [2017] FCAFC 64
Wilson and Comcare [2010] AATA 396
REASONS FOR DECISION
Deputy President Gary Humphries
27 June 2017
BACKGROUND

Ms Anna Wieczorek has been a Commonwealth public servant since 2001. She joined the Department of Health (the Department) in 2006. By 2011 she was working in the Immunisation Policy Section (the Immunisation Section) of the Department’s Office of Health Protection. On 27 March 2014, while she was temporarily seconded to the Therapeutic Goods Administration (TGA), she suffered from a work-related psychological condition. After a period of leave she returned to work, and eventually was placed again in the Immunisation Section. There she again suffered from a work-related psychological condition, on or about 21 May 2015. She went on leave that day and has not returned to work since then.
Ms Wieczorek lodged an application for workers compensation with Comcare on 17 July 2015, and on 14 September 2015 Comcare accepted liability for adjustment disorder with anxious and depressed mood. On 24 November 2015 the Department requested reconsideration of that determination, and on 20 January 2016 Comcare revoked the determination of 14 September 2015, and instead determined that Ms Wieczorek was not entitled to compensation for her claimed condition. It did so based on the Department’s submission that her injury was the result of reasonable administrative action taken in a reasonable manner, which excluded her condition from compensation pursuant to s 5A of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
On 21 January 2016 Ms Wieczorek applied to the Tribunal for merits review of this 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) In this Act:
"disease " means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
ISSUES BEFORE THE TRIBUNAL
The Tribunal has the advantage of agreement between the parties as to certain of the matters which it has to determine. The parties agree, and the Tribunal finds, that the conditions forming the basis of Ms Wieczorek’s claim each fell within the definition of a disease under s 5B of the Act, in that:
(a)the condition suffered on 27 March 2015 was an ailment contributed to, to a significant degree, by her employment by the Commonwealth; and
(b)the condition suffered on or about 21 May 2015 was an aggravation of an ailment, the aggravation being one contributed to, to a significant degree, by her employment by the Commonwealth.
The parties further agree that the conditions are each diagnosed as an adjustment disorder with anxious mood (or a diagnosis to similar effect) and that Ms Wieczorek continues to suffer from this condition. What the parties are not agreed on is whether the conditions are excluded from compensation by force of s 5A of the Act in that they were suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Comcare’s position is that they are, Ms Wieczorek’s is that they are not.
THE EVIDENCE
Ms Wieczorek’s evidence
Ms Wieczorek was moved from the Immunisation Section to a newly-created Business Services Centre (BSC) in December 2013. The BSC was created to accommodate employees of the Department whose positions had been defunded. Those employees were to constitute a labour pool that could be drawn upon to support other areas of the Department as required. During her 12 months attached to BSC she worked for a large number of supervisors, according to a statement she made dated 4 April 2016.
In February 2014 she began work in the Office of Device Authorisation within the TGA. There she experienced more turnover of supervisors. A document entitled a Movement Instrument was tendered, setting out details of her temporary movement to TGA. The document describes the Period of assignment as 21 February to 20 August 2014.
On 20 March 2014 Mr Ben Hanns, her supervisor, sent Ms Wieczorek a lengthy email following what the email described as our discussion the other day regarding data entry. The bulk of the email consists of descriptions of 12 particular applications to the TGA; under each description are detailed what appear to be instructions or corrections pertaining to the application. Ms Wieczorek denied that the email’s purpose was to describe mistakes she had made or areas which she should improve in future. Rather, she said that this was training, given that she had been told to learn data entry processes by trial and error. They were not mistakes because she had not previously been told by anybody to enter the data in any particular way. The email was a summary of my learning in the new database. She agreed that Mr Hanns had raised some of these issues with her, as feedback, prior to the email of 20 March.
On 21 March 2014, there was a meeting between Ms Wieczorek, Mr Hanns and Ms Antares Wood, the section director. Ms Wieczorek was advised that her position within the TGA was not ongoing, and that she would have to transfer back to BSC. Ms Wieczorek said that the reason she was given for this was that there was no budget for my position. An email later that day between Mr Hanns and Ms Wood referred to Ms Wieczorek being told that her role there was not an appropriate fit for her and her skill set. Ms Wieczorek agreed that this was discussed at the meeting, and that she was not an appropriate fit for the role. The email makes reference to Ms Wieczorek being advised at the meeting that her position had been subject to a one-month trial, to see if it would continue for a full six months. Ms Wieczorek denied that she was told this at the meeting.
A meeting was held on 27 March 2014, attended by Mr Hanns, Ms Wood, a BSC representative (by telephone) and Ms Wieczorek. The possible transfer of Ms Wieczorek back to BSC was discussed, though she told the Tribunal no decision was made at that meeting. An email from Ms Wood later that day, cc’d to Mr Hanns, was tendered. It read, in part:
Things have gone belly-up entirely with our BSC placement and we have a very stressed employee in the middle of it…
…
In short, we were advised by Graeme today that Anna misunderstood / misrepresented her position to the BSC yesterday (no understanding of the one month trial, no performance issues and fine to stay)…
…
Anna again asked for my support in calling the BSC to clarify the situation. Unfortunately this is where it went belly-up. The BSC essentially wanted to confirm that Anna did not know about the trial and that she was very happy to stay. Anna clarified that the job here was not ‘ideal’ as the job had changed from what was spoken about at the interview, but that if she was instructed to stay she would…. We ended the conversation and I suggested to Anna that she document her understanding of our conversation today to ensure clarity from our perspective…
…
The placement here is not viable and not only is this taking up huge amounts of time for us, Anna is under considerable stress in the middle of it… So in short – yuck.
Ms Wieczorek agreed that at that meeting she understood that her position at TGA may not continue, and that her not being an appropriate fit was part of the reason. In addition, the nature of the job had changed from when she was originally interviewed for it by TGA. She told the Tribunal, however, that there was a conflict at the meeting about whether she should move: BSC was saying that I was to stay at TGA, TGA was saying that I have to go to BSC.
When asked under cross-examination whether she had documented her understanding of the conversation that day, Ms Wieczorek said that she made a file note, which was probably at her home. She was asked to produce the file note, but could not do so, despite an overnight search for it between the first and second days of the hearing.
In her statement, Ms Wieczorek said that she experienced symptoms of insomnia and emotional exhaustion on 26 March 2014, and felt ill the following day. She went to see a doctor that day and was assessed as unfit for work until 7 April 2014.
Ms Wieczorek returned to work on 14 April 2014, in a different area of the TGA. She told the Tribunal she felt positive about her performance there following her return to work. She was offered extensions of her contract. There were, however, discussions involving some of her supervisors in which her performance was discussed. These discussions did not generally involve Ms Wieczorek herself, though she was spoken to about the excessive amount of flex time she had accrued, and strategies she might use to reduce it. She agreed that one supervisor – Margaret Joy – had raised concerns with her about attention to detail in her work.
It was put to Ms Wieczorek that another supervisor – Ms Jennifer Burnett – had encouraged her to better manage her time as it was felt that her workload did not justify the long hours she was recording in her flexsheets. Ms Wieczorek disagreed that she had a problem with this, or that Ms Burnett had spoken to her about this. In an email sent about a year after the events being discussed, Ms Burnett recorded that:
Towards the end of her time in the section I was working closely with her to ensure that she had the appropriate skills to handle different situations and to assist her with the more difficult technical issues if needed.
Ms Wieczorek denied that Ms Burnett had worked closely with her, and said that she did not need any help from someone who just started in the section and did not know exactly what I was doing.
On 8 December 2014 she returned to the Immunisation Section following the disestablishment of the BSC. The move happened suddenly, following the announcement of BSC’s abolition. Her supervisor back at the Immunisation Section was Ms Krissa O’Neil. Ms Wieczorek’s satisfaction with her job appears to have declined with the return to this section. Ms Wieczorek said that the workload there was very high. In her statement, she said:
I felt tired to the point of exhaustion and my work was not appreciated. I spoke with my director about my feelings, the excessive workload, the uneven distribution of work and the overall work environment.
She said she cried easily, often at work, and was unable to sleep. She experienced anxiety attacks and on a number of occasions became ill when approaching the building where I worked. She said she went to her director, Ms Bridget Dohnt, who told her that she was unable to form an opinion about the distribution of her workload and suggested she speak to someone in the Human Resources section (HR). She said she also brought her extreme workload and uneven work distribution concerns to Ms O’Neil’s attention. Her evidence was that Ms O’Neil did not understand what I was talking about and did not make any adjustments.
A mid-cycle review of Ms Wieczorek’s performance began in late 2014 or early 2015. As part of that process a Performance Development Scheme (PDS) was commenced. Ms O’Neil considered that Ms Wieczorek should be given an improvement needed rating. Evidence was put before the Tribunal of a series of meetings where Ms Wieczorek’s performance was discussed over the period February to May 2015; the evidence was sometimes disputed as to whether particular meetings occurred and, if they did occur, the issues discussed there.
In a statement dated 4 November 2015, Ms O’Neil said that she met with Ms Wieczorek on 27 February 2015 to discuss her PDS. She said that Ms Wieczorek was not performing at the reliable and meaningful contribution and performance level required of an APS 6 in all areas of her work, and based this on her observations of her judgement… prioritising, time management and most importantly writing. Ms Wieczorek, however, denies that the meeting on 27 February occurred, or that such concerns were conveyed to her before that time by Ms O’Neil. She denied being told that she was being given an improvement needed rating.
Ms O’Neil’s statement records that a further meeting was held with Ms Wieczorek on 25 March 2015, where the Coaching and Mentoring Performance Process for underperforming staff was discussed. Ms Wieczorek gave evidence that the meeting probably occurred, but that the coaching and mentoring process was not discussed there.
Ms Wieczorek was referred to Mr Sadib Dowla, from the Department’s People Management Section in HR. She said she had two meetings with him, and that she cried during both conversations. She also noted, however, that HR was unable to help. She told the Tribunal that the reference to Mr Dowla had been made after her complaints about her workload. However, an email from Ms Dohnt to Ms Wieczorek of 26 March 2015 refers to Ms Wieczorek meeting Mr Dowla to discuss your recent PDS discussion and outcome with him. She denied that the subsequent meetings with Mr Dowla were for the purpose of discussing her PDS. When asked to explain why she had not corrected Ms Dohnt’s email reference to her PDS, she said that she had probably not read the email properly.
An email from Ms Wieczorek to Mr Dowla dated 8 April 2015 was tendered. In it she spoke of a new template that Ms O’Neil had told her about:
…where she would be able to record all shortcomings in greater details. Then she added that “there would be also a place to write something good too”. It sounded that nothing is positive about my performance. I was v. upset. She is so negative…
I did not have a scheduled performance meeting with Krissa last week…
Mr Dowla’s reply was also tendered. In it he said:
This is the exact reasoning behind the coaching and mentoring process, which will give me a chance to see how you two communicate with each other and what each of you need to work more on.
Ms Wieczorek denied that the mention of shortcomings and performance in these emails was a reference to concerns about her work performance. She denied that Mr Dowla referred to the coaching and mentoring process because it has been the subject of discussions between her and him. She also denied that she had discussed the coaching and mentoring process with Ms O’Neil prior to this email. She said she didn’t know what was meant by coaching and mentoring in Mr Dowla’s email. A further reference was made to the coaching and mentoring process in an email from Mr Dowla to Ms Wieczorek the following day. She admitted that she did not query the use of this term in Mr Dowla’s email or challenge his reference to you’re [sic] overall performance. She said I was overwhelmed with other tasks.
File notes taken by Ms O’Neil of meetings with Ms Wieczorek were produced. The meetings – on 22 April, 30 April and 6 May 2015 – described matters discussed in relation to the review of her performance. Ms Wieczorek agreed under cross-examination that the file notes were broadly accurate, though she did not recall the dates of some meetings and queried certain details in the file notes.
Ms Wieczorek was shown a document entitled Performance Management – Action Plan (the Action Plan), where her name was entered against the field Employee Name. She denied she had ever been shown this document while in the Immunisation Section.
In her statement of 4 November 2015, Ms O’Neil indicated that I do not consider that Anna’s workload was excessive or unreasonable. In my view, the workload Anna had could easily have been achieved by any APS 6… Ms Wieczorek disagreed with this statement.
Ms Wieczorek’s timesheets in the period December 2014 to May 2015 were before the Tribunal. She agreed that they were accurate. They disclose that throughout this period she worked her core hours of 7 hours 30 minutes, or perhaps a little more, took lunch breaks and generally left work at a reasonable hour. She managed to reduce her flex balance during this period. The clinical notes of her GP, Dr Wong, were also before the Tribunal. The note of 21 May 2015 records:
very tearful during consultation
work overwhelming and stressful
extremely busy - nil time to even fill hot water on tea, nil time to go to BR, sometimes missed lunch, sometimes requested to stay after hours

Ms Wieczorek rejected the suggestion that these comments were inconsistent with the record of her timesheets, though she agreed that the reference to missing lunch was inaccurate.
On 14 May 2015, a meeting was held between Ms Wieczorek, Ms Dohnt and Ms O’Neil, where the latter advised that they would not be proceeding with a formal review, but instead would continue with the informal review.
On 20 May 2015, Ms O’Neil met with Ms Wieczorek to tell her that she would be giving her a rating of improvement needed, and continuing with the informal review. Ms Wieczorek’s evidence was that, at that meeting, she was advised of another significant increase in my workload. She complained to Mr O’Neil about this. She said Ms O’Neil ignored my concerns, leaving her in tears. An email was sent to her after the meeting, which forwarded an earlier email from Ms Burnett, which was critical of her performance while at TGA. Ms Wieczorek claimed not to have seen the email before she left work that day.
It was put to Ms Wieczorek that, having been told at the meeting that day that she was being rated improvement needed, she was upset by this and that this was the reason she went to her doctor the following day. Ms Wieczorek said that this was completely untrue.
Ms Wieczorek said that she was exhausted after the events of that day, and cried while leaving work. She said she could not sleep that night and consulted her GP, Dr Wong, the next day.
Ms Dohnt’s evidence
Ms Dohnt, Ms Wieczorek’s director at the Immunisation Section, said that Ms Wieczorek’s work there included data entry and checking website content. She said that she did not recall ever being approached by Ms Wieczorek with a complaint about her workload.
Ms Dohnt said that she became aware that Ms Wieczorek needed to improve her performance to be operating at the APS 6 level. She and Ms O’Neil, her supervisor, sought advice from HR. Ms Wieczorek was provided with an action plan to pursue this process, and Ms Dohnt identified the Action Plan as that document.
In respect of the discussions she had with Ms Wieczorek between March and May 2015, Ms Dohnt was in no doubt that Ms Wieczorek understood that there were performance issues identified as needing attention, though she was unsure as to whether she understood exactly every detail.
Ms Dohnt’s attention was drawn to the Department’s policy document Managing Underperformance. The document appears on the Department’s intranet site. A statement in that policy reads:
As performance concerns arise it is crucial that the manager and staff member keep records relating to work performance…
Ms Dohnt told the Tribunal she could not recall having kept notes of her dealings with Ms Wieczorek. She said I don’t take a lot of notes for some meetings and this was an informal process. She agreed that Ms Wieczorek was in the throes of Step Two of the process (Coaching & Mentoring) described in Managing Underperformance during the first half of 2015. She was asked a series of questions relating to what the policy describes as manager’s responsibilities, and whether these particular policy requirements were exercised in relation to Ms Wieczorek. In answer to many of these questions she said she did not personally apply the requirements or recall if they were applied by Ms O’Neil, but observed that, as Ms Wieczorek’s supervisor, Ms O’Neil was the manager to whom the policy referred.
Ms Dohnt said that some strategies to help Ms Wieczorek improve her performance were implemented orally, and some through the Action Plan. In this respect, Ms Wieczorek was given certain drafting tasks and offered training. She agreed that she did not personally provide Ms Wieczorek with the Action Plan.
Ms O’Neil’s evidence
Ms O’Neil has been an employee of the Department of Health for at least 16 years. She has held senior positions – at APS 6 level or higher – supervising other employees throughout that time. However, the management of Ms Wieczorek’s underperformance has been only the second time in that career she has been called upon to undertake such a task.
Ms O’Neil was asked to explain handwritten annotations appearing under the heading REVIEW & ASSESSMENT in a document outlining Ms Wieczorek’s PDS requirements (the PDS document). She said Ms Wieczorek was expected to be more proactive about managing, better prioritisation of her work, discussing earlier in the development of advice…what level of detail needed to be included, the need to seek feedback on her work from others at an earlier stage of drafting, multitasking, and better strategic thinking. She said that the annotations were made on the PDS document as she was discussing it with Ms Wieczorek at their meeting on 27 February 2015, in a coffee shop.
At that meeting, according to Ms O’Neil, they discussed how Ms Wieczorek had enjoyed her two months or so back at the section, and then I talked about some areas in which I felt that she needed to improve, in particular around her writing skills, communication and judgement and time management. In relation to concerns about her writing skills, Ms O’Neil specified lack of clarity and concision, grammatical mistakes and the inclusion of irrelevant material. Sometimes she would edit Ms Wieczorek’s drafts to deal with these issues. Sometimes oral feedback on her drafting was provided; Ms O’Neil said long discussions would ensue with Ms Wieczorek, who sometimes would debate suggested corrections.
Ms Wieczorek’s assertion that she had complained about her extreme workload and uneven distribution of work to Ms O’Neil in February 2015 was put to Ms O’Neil. She agreed that some people in the branch complained about their workload, but she denied that Ms Wieczorek had complained about an uneven distribution of her work. She said Ms Wieczorek may have made a comment along the lines of there’s too much to do, but such commentary was not uncommon in the section.
Ms O’Neil did not have a distinct recollection of the meeting of 25 March 2015 with Ms Wieczorek, but she told the Tribunal that Ms Wieczorek had appreciated the opportunity to work on some of the issues in terms of mentoring. She said that workload issues were not raised by Ms Wieczorek.
She said she gave Ms Wieczorek the Action Plan on or before 22 April 2015. This represented, she said, a program that she and Ms Wieczorek would work through on a weekly basis. She affirmed that the three file notes of 22 April, 30 April and 6 May 2015 accurately captured what had been discussed on those days with Ms Wieczorek.
Ms O’Neil said that Ms Wieczorek was orally given feedback in weekly meetings about her performance against the Action Plan. Examples of this included getting a clearer view of what was required in a document at a higher level before going and …starting to write it and checking back at critical points rather than going off on a tangent. The Action Plan itself identifies strategies for improvement, she said.
She rejected claims of Ms Wieczorek that she had increased her workload, notwithstanding complaints that it was already too heavy, or that she set unnegotiable deadlines for meeting that workload. She said that she gave positive feedback on some matters to Ms Wieczorek, as well as passing on positive comments from people such as the manager of the BSC. She said she had no recollection of ever having refused a leave application made by Ms Wieczorek.
In her statement, Ms O’Neil indicated that she had hesitated to provide Ms Wieczorek with critical comments made by her former supervisor at TGA, Ms Burnett. In the witness box, she explained:
…I was concerned, I must admit…my perception had been that Anna had thought she had done a good job, so I thought it would be a shock to her to hear that, or to read it.
Ms O’Neil said that she had no doubt that, in the period February to May 2015, Ms Wieczorek was aware of the performance issues which had been raised by the PDS process.
Under cross-examination, Ms O’Neil was taken to the Managing Underperformance policy document. She agreed that Ms Wieczorek had been taken through Step One of that document – local or informal resolution of underperformance – and was in Step Two – Coaching & Mentoring – when she left work on 20 May 2015.
The following section of the Managing Underperformance document was put to Ms O’Neil:
As performance concerns arise it is crucial that the manager and staff member keep records relating to work performance including:
·A chronology of events
·File notes of meetings or performance discussions
·Correspondence outlining work tasks and associated expectations and/or work examples of performance concerns.
The principles of procedural fairness are applied to the underperformance process. That is, it must be a fair and proper process at all stages.
Ms O’Neil was asked to produce notes, pursuant to this policy, that she had taken in respect of her meeting of 27 February 2015. She was also asked to produce notes she took of the meeting of 25 March and of a meeting which she had held with Ms Wieczorek the day before, but which was not referred to in her statement of 4 November 2015. She said if I took notes it would have been in a notebook and probably with the passage of time I just threw the book away without thinking of [the] significance of anything. She agreed that this was not consistent with the performance guidelines of the Department, though she said it was consistent with advice she received from HR.
She was asked if she had told Ms Wieczorek at the meeting of 25 March 2015 that she could have a support person present. She agreed she had not, describing this as an oversight on my behalf. She said that she did make this offer at other stages in the process, however. It was put to her that this was untrue; she said I had thought that we had discussed that… However, she accepted later in her evidence that she had not advised Ms Wieczorek of her right to have a support person present, and in doing so agreed she had failed to discharge her managerial responsibilities under the coaching and mentoring process.
It was put to Ms O’Neil that at no stage between 8 December 2014 and 20 May 2015 did she ever raise performance issues with Ms Wieczorek. She responded that she didn’t think this was correct in the context of the PDS in February and:
…when you are going through pieces of work with writing I don’t think I needed to specifically say I have a concern with your performance when somebody can self-reflect and see whether or not that quality of that work is at level.
It was put to Ms O’Neil that she had not shown the Action Plan to Ms Wieczorek at their meeting on 22 April 2015, but had shown her a similar document which was a work plan setting out the tasks she needed to complete by certain dates. She denied this. She agreed that she could have – but did not – attach the document she claims to have given Ms Wieczorek on 22 April to the file note she made of that meeting. She also agreed there would now be no dispute about what had been given to Ms Wieczorek if proper file notes had been kept.
Ms O’Neil said that an earlier document, prepared during the development of the Action Plan, had been shown to Ms Wieczorek. That document was a table which would have potentially had tasks, timeframe, measurements… key areas of work that could be measured over a four week period. That table was not produced.
Counsel for Ms Wieczorek pointed out to Ms O’Neil that the Action Plan given, on her evidence, to Ms Wieczorek on 22 April 2015 contained tasks which were to have been completed before 22 April. She responded by saying that the document was the one cleared by the director and HR, and at that meeting on 22 April she and Ms Wieczorek had adjusted the dates for what was reasonable. There were no tasks Ms Wieczorek was expected to have completed before she was given the document. This, and subsequent, amended versions of the Action Plan were not produced.
Ms O’Neil said that the coaching and mentoring process (Step Two of the Managing Underperformance process) began on 22 April 2015. The policy document requires that the managed employee be told the possible consequences if performance does not improve. Ms O’Neil conceded that she did not do this. Under further questioning, however, she said it [advice on possible consequences] would have been at the March 25th meeting, but then added I outlined to her the process [at the 25 March meeting]; I wasn’t really strong on “these would be the consequences”, I agree. She later explained that this was because it had been expected that the process would bring Ms Wieczorek up to the level of performance where further stages of the Managing Underperformance process would not be required.
The Managing Underperformance policy requires that a staff member be provided a copy of the action plan before starting the Coaching and Mentoring process. Ms O’Neil conceded that she did not do this, and she agreed that this meant she had failed in her managerial responsibilities under the process. When asked whether she had given Ms Wieczorek the Managing Underperformance policy itself, she said I don’t recall.
Ms O’Neil also agreed that she had not supplied Ms Wieczorek with the document entitled a Capability Map, as required by the policy. Again, she agreed that she had failed to discharge her duties under the policy in this respect. However, in re-examination she said the contents of the Capability Map, as relevant to Ms Wieczorek, was incorporated in the PDS document.
Ms O’Neil agreed she had not made a file note of the meeting with Ms Wieczorek on 20 May 2015, but characterised an email she sent later that day to Mr Dowla and Ms Dohnt as the record of what was discussed. She also agreed that, if the email was the record of the meeting, its contents were not put to Ms Wieczorek to allow her to agree or disagree with the assertions that she, Ms O’Neil, made in it.
Overall, Ms O’Neil agreed that the process of managing Ms Wieczorek’s underperformance could have been significantly improved, and that there were significant shortcomings in her handling of this process. She also agreed that this was the first time she had formally managed an employee’s underperformance under the policy by herself. However, she said that her conduct of this underperformance process was consistent with advice she had received from HR. She said that at no stage did Ms Wieczorek raise concerns about this process.
The medical evidence
Two consultant psychiatrists gave evidence to the Tribunal about the cause of Ms Wieczorek’s psychological condition, and written reports of each doctor were also tendered. Dr William Knox wrote a report dated 6 April 2016, and Dr Robert Gertler wrote three reports, dated 26 August 2015, 11 December 2015 and 7 July 2016.
This evidence was relatively uncontroversial. Dr Knox diagnosed her with a chronic, moderately severe Generalised Anxiety Disorder, along with mild to moderate severity, chronic Major Depressive Disorder as at the date of his report. Dr Gertler diagnosed an adjustment disorder with anxious mood, but agreed that there was no substantive difference with the diagnosis of Dr Knox. Both agreed that she suffered a psychological injury on 28 March 2014, and again on or about 20 May 2015, each contributed to by her employment. Neither doctor indicated any difference in the diagnosis they assigned to the condition she suffered from on each of these dates.
Dr Gertler considered that the factors contributing to Ms Wieczorek’s injury in 2014 were:
…the experiences related to late March 2014 when she was allegedly told that she was not suited to a particular type of work, information which she accepted but was then left in a state of uncertainty as to where she would be going in terms of her work.
The latter factor related to:
…a period of significant uncertainty when there was apparent conflict between two departments as to what her future role should be.
Dr Knox was less specific about the causes of the 2014 injury, but referred to very chaotic management and being accused of underperforming.
The view that she was injured by uncertainties around her placement at TGA is supported by the clinical notes of her GP dated 28 March 2014, which record:
very upset/tearful due to work situation
since last week director at TGA where she was temporarily sent to from DOH has said there is no job for her there and that she needs to clear her desk and leave

was on temporary transfer to TGA for 6mn by previous director
yesterday was bullied by new director and threatened –told to pack her bag and leave that new staff had been recruited and her desk was required
Dr Gertler considered that the 2015 condition was an aggravation of the 2014 condition. Dr Knox opined that Ms Wieczorek got better, but didn’t completely recover from her psychological injury of March 2014. The events of 2015 caused her condition to be reactivated and made worse. On balance, I consider the medical evidence to establish that there were two separate injuries suffered by Ms Wieczorek, each bearing a similar diagnosis.
CONSIDERATION
As Ms Wieczorek clearly sustained two work-related injuries, the circumstances in which each arose must be examined by the Tribunal separately. Comcare asserts that neither injury is compensable by virtue of the operation of the exemption in s 5A. To take advantage of the exemption, Comcare must establish, in respect of each injury and on the balance of probabilities, that the injury arose out of administrative action which was:
(a)taken in respect of Ms Wieczorek’s employment;
(b)reasonable; and
(c)carried out in a reasonable manner.
In light of the recent decisions in Comcare v Martin [2016] HCA 43 and Lim and Comcare [2017] FCAFC 64 (where the scope of the reasonable administrative action exemption was clarified by the High Court and Federal Court respectively), a fourth test must be added to establish the exemption: was there a direct causal connection between the administrative action and the condition? Put another way: without the taking of that particular administrative action, would Ms Wieczorek have suffered that injury? Without that causal connection, the exemption is not available.
On balance, the Tribunal considers that the 2014 injury attracts the s 5A exemption, and thus is not compensable. However, it considers that the 2015 injury does not attract the exemption, and is compensable. The Tribunal’s reasons follow below.
The 2014 Injury
The medical evidence suggests that two factors in particular contributed to Ms Wieczorek’s injury on 27 March 2014: being told that she was not equipped for the work she was doing at TGA, and uncertainty about whether she would stay there or go back to BSC. Although at this time she does not appear to have been subject to a structured performance management process – as she clearly was in early 2015 – it is clear that she was experiencing problems in meeting the expectations of her superiors. Ms Wieczorek denied that it was initially put to her that there was a problem with her performance; for example, though Comcare characterised Mr Hann’s email to her of 20 March 2014 cataloguing errors in her processing of applications as performance management, she insisted that it was merely feedback or training.
Indeed, there was frequently a stark difference between what the Department said was happening and what Ms Wieczorek thought was happening during 2014 and 2015. Notwithstanding that divergence, the evidence before the Tribunal strongly suggests that Ms Wieczorek’s performance during this period sometimes fell below that expected of an APS 6. Email traffic across different areas of the Department, where concerns of this kind were aired, suggests this view was shared by several of her supervisors. It leads reasonably to the conclusion that Ms Wieczorek faced challenges in reaching appropriate standards in her written expression, concision and time management. In these circumstances, the Tribunal considers that it was reasonable for the Department to activate steps for addressing and remediating employee underperformance.

Against this background, it is difficult to accept Ms Wieczorek’s evidence that she was not informed of her underperformance until shortly before she suffered psychological injuries in, respectively, March 2014 and May 2015. It is perplexing that in neither case was she advised – in writing and in unambiguous terms – that she was considered by her superiors to be underperforming. Notwithstanding that omission, the Tribunal considers that it was reasonably clear that her employer took steps to apprise her of her underperformance and to engage her in various remedial processes.
This is not to say that the Tribunal regards Ms Wieczorek’s evidence – that she was not so apprised, until a relatively late stage – as deliberately untruthful. Dr Gertler, in his report of 11 December 2015, describes Ms Wieczorek’s perception of her employer’s actions in addressing her performance as being unrealistic. He refers to:
…her tendency to displace any distress which she might be experiencing onto the employer, rather than deal with any difficulties she may herself be having because of her own possible inadequacies, leading to difficulty accepting inadequacies in herself, given her conscientious self-image.
Ms Wieczorek displayed a somewhat literal, inflexible approach to issues put to her in examination before the Tribunal, exacerbated perhaps by speaking English as a second language. It is possible that on occasions she simply failed to appreciate the import of what she was told by her employer about the way she undertook her work. This lack of comprehension may have been compounded by her supervisors occasionally eschewing bluntness in an effort to avoid upsetting her.
Taking into account the apparent rigidity of her thought processes, and the lack of insight these may have contributed to, the Tribunal tends to prefer the evidence of the departmental officers who gave evidence.
In light of that evidence, the Tribunal considers that the raising of performance issues at TGA in March 2014 was reasonable administrative action, in that it was an appropriate response to shortcomings in her performance. The Tribunal is persuaded that officers at TGA were attempting, in a low-key way, to address deficiencies in Ms Wieczorek’s performance. Mr Hanns’ email to her of 20 March 2014 reads as an attempt to rectify processing errors. Ms Wieczorek’s characterisation of the email as training does not alter the impression that it responded to multiple mistakes she had made in her work to date.
A similar conclusion can fairly be reached with respect to the uncertainty around the continuation of her role at TGA.[1] The evidence suggests that officers assigned to the BSC were intended to be deployed to areas of workforce shortage throughout the Department, and it is reasonable to suppose that such officers understood that was their role. If, following such a deployment, there were deficiencies identified in Ms Wieczorek’s performance at TGA – as the Tribunal has found to be the case – it was reasonable in the circumstances for the Department to propose her return to BSC. Equally, it is difficult to accept she was told she would have to return to BSC because there was no budget for my position, when that position is nowhere documented in the email correspondence. Accordingly, the Tribunal is comfortably able to find that the Department’s handling of her placement at TGA was reasonable administrative action.
[1] Although her position as TGA was described during the hearing as a transfer (of the kind referred to in s 5A(2)(f) as an example of reasonable administrative action), Comcare contended – and the Tribunal agrees – that the position is better described as a placement.
Ms Wieczorek’s counsel put to the Tribunal that administrative action relating to her placement vis-a-vis the TGA was an operational matter, and therefore did not constitute action in respect of [her] employment, as specified in s 5A. The argument was that she was adversely affected by the operational decisions arising from the creation of BSC, and that her movements around the various arms of the Department was a product of those operational decisions and not of decisions about her employment specifically.
In Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 the Federal Court considered whether certain actions of an employer fell within the definition of action... in respect of the employee’s employment under s 5A. In this regard Gray J observed (at [33]):
In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. ... As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.
In the same decision, Rares and Tracey JJ opined (at [60]):
The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be.
It seems evident from this elucidation by their Honours that administrative action which is personal or specific to a particular employee is more likely to fall within the exclusion, while policy or practice of the employer applied across the workplace is less likely to do so. With that distinction in mind, it is difficult to argue that the complained-of actions here are not caught by the exclusion. It is, with respect, a misconstruction to suggest that Ms Wieczorek was injured by the effect of broader departmental policies which caused employees to be placed on a temporary basis outside their usual area of employment. The medical evidence suggests that what injured her was the way her placement at TGA was handled. The Tribunal regards these actions as having been taken in respect of her employment specifically.
In support of this conclusion, the Tribunal notes the decision of Deputy President Hack in Lee and Comcare [2012] AATA 867, where the sudden termination of an employee’s placement in a different administrative area was regarded as administrative action in respect of her employment.
With respect to the test of causation required in consequence of the decisions in Martin and Lim, the medical evidence is clear that the performance issue and the uncertainty about her continuing placement at TGA directly gave rise to the psychological injury. The Tribunal finds that the injury would not have been suffered but for those administrative actions.
Having arrived at the view that Ms Wieczorek suffered an injury as a result of the departmental actions in question, and that these administrative actions in respect of her employment were conceptually reasonable, Comcare needs to satisfy the Tribunal of one further matter if it wishes to exclude liability pursuant to s 5A: that the administrative actions were taken in a reasonable manner. In this regard, Ms Wieczorek essentially mounted two arguments: that the Department unreasonably withheld advice to her both that she was being performance managed and that her placement at TGA was subject to a one month trial. Those omissions meant that the actions were not taken in a reasonable manner. By contrast, Comcare relied only on the administrative action associated with the uncertainty of her placement as the basis for the s 5A exclusion.
In the circumstances of performance deficiencies, it could readily be said that a proposal to transfer her out of TGA was reasonable. What seems less reasonable, however, is the failure to advise her that this was possible because she had only been placed there on a one-month trial. Comcare put to the Tribunal that she had been advised of this before beginning the placement; the Tribunal does not accept that submission. Ms Wieczorek’s claim that she was not told of the trial until the meeting of the 27 March 2014 is supported by Ms Wood’s email of the same day, which records BSC advising that it had not previously told Ms Wieczorek of this fact. The late notice of this caveat on her role was clearly upsetting to her, as the clinical notes of her doctor the following day show, and the failure to advise her about this hitherto seems like a significant administrative failing. The question the Tribunal must ask is: does this failing carry the action out of the realm of action taken in a reasonable manner?
To say that administrative action must be reasonable is not the equivalent of saying it must be perfect. 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.
Similarly, in Lee and Comcare [2012] AATA 867, the Tribunal observed:
There will frequently be a range of ways in which administrative action might be taken reasonably as well as a range of ways that are unreasonable. Here, I consider, the action was taken in a reasonable manner even though, with the benefit of hindsight, it may now be said that the actions could have been done better.
Counsel for Comcare described the public service as a fluid and robust environment in which employees must accept that operational requirements may dictate where their services are to be deployed. In those circumstances, the transfer with minimal notice of an employee with an unattached designation should have been regarded as foreseeable. Such a transfer entailed no loss of income or rank, merely a change of work location.
It is not to be doubted that, armed with hindsight, the Department would have advised Ms Wieczorek that her placement at TGA was subject to a one-month trial. However, notwithstanding that the eventual discovery of this omission caused her considerable distress, it entailed no substantive disadvantage to her. Were the Tribunal to pronounce this omission as a failure to act in a reasonable manner, it would be setting an unrealistically high benchmark for administrative conduct in these settings.
On balance, the Tribunal regards the Department’s handling of the termination of Ms Wieczorek’s placement at TGA as having been undertaken in a reasonable manner. As such, the s 5A exemption is made out, and her workplace injury of 27 March 2014 is not compensable under the Act
The 2015 Injury
It is clear on the evidence that Ms Wieczorek’s performance issues continued to require supervisory management after her return to the Immunisation Section in December 2014. Similar issues to those she encountered at TGA recurred while she worked in that section. It was common ground between the parties that the steps taken to deal with these issues amounted to administrative action in respect of employment, pursuant to s 5A.
In applying the Managing Underperformance policy to Ms Wieczorek, the Department displayed a high degree of concern and patience in dealing with her underperformance. As already indicated, the Tribunal considers that her employer did take steps to indicate to her that she was being performance managed due to the belief that the skills were not sufficiently developed for the level at which she was operating, though, once again, its failure to spell this fact out unambiguously in written communication to her early in the process is a mystifying omission on its part. The Tribunal finds that placing her on an underperformance program constitutes reasonable administrative action within the terms of s 5A.
Ms Wieczorek’s response to being performance-managed was less than exemplary. As already noted, at various points in this chronology it is difficult to reconcile the version of events recounted by her with those by her superiors in the Department. The claim, for example, that pressure of work at the Immunisation Section prevented her taking lunch breaks does not accord with the record of the timesheets or with the recollection of her supervisor. To the extent that her evidence, on the one hand, and the evidence of Ms Dohnt, Ms O’Neil and that of retained documents, on the other hand, diverge, the Tribunal tends to prefer the latter.
It is one thing to conclude that Ms Wieczorek did not behave reasonably when concerns about her performance were raised; it is another to attribute any relevance to such a conclusion. To obtain the benefit of the s 5A exemption, it falls to Comcare to establish – on the balance of probabilities – that the administrative action in question was reasonable, and was executed in a reasonable manner. In assessing that case, the reasonableness or otherwise of Ms Wieczorek’s behaviour is of little moment. The fact that an employee, the subject of employment-related administrative action, may behave unreasonably or irrationally does not relieve Comcare of its obligation to take reasonable action, in a reasonable way, in respect of that employee, if it wishes to claim the exemption. The test of reasonableness in s 5A falls only on the employer, not the employee.
The extent to which an employer’s administrative actions can be characterised as conceptually reasonable, and being carried out in a reasonable way, will be a matter of assessing the circumstances in any given case. What might be considered reasonable in the context of an employee who is distressed or irrational may be different to the context of one who is not. In each situation, a fresh assessment of what is reasonable in respect of an employee’s position will be required.
In the present circumstances, the Tribunal has little difficulty finding that the administrative action taken in relation to Ms Wieczorek’s work performance between February and May 2015 was the sole cause of the psychological injury she sustained in May, consistent with the evidence of Dr Gertler. In other words, the injury would not have been suffered but for those administrative actions. In terms of s 5A, therefore, it remains only to consider whether the administrative action was undertaken in a reasonable manner.
Manifestly, there were serious shortcomings in the Department’s execution of the underperformance program, as the supervisor, Ms O’Neil, conceded in evidence. On the evidence, the Tribunal finds that the following procedural shortcomings occurred:
·records – in particular file notes – of each engagement with Ms Wieczorek over her performance management were not kept;
·the failure to advise Ms Wieczorek that she was entitled to have a support person at each performance meeting;
·the failure to advise Ms Wieczorek of possible consequences if performance does not improve;
·the failure to provide Ms Wieczorek with a copy of the action plan before starting the Coaching and Mentoring process;
Each of these shortcomings constitutes a breach of the Managing Underperformance policy that applied to departmental employees at the time. In addition, it must at least be open to some doubt that anyone gave Ms Wieczorek a copy of the Managing Underperformance policy or directed her to where she might find this on the Department’s intranet site.
The record-keeping in relation to this process was so poor that it is not even clear when it transitioned from the low key exercise under Step One to the more structured Step Two: Coaching and Mentoring. Ms O’Neil characterised the intention behind this lack of rigour as being to keep the process informal; the effect, in the Tribunal’s opinion, was to make it sloppy and confusing. It also seems likely that the lack of structure contributed to the distress felt by Ms Wieczorek, whose reasoning processes seemed to rely significantly on structure and formality.
As previously observed, the notion of action being taken in a reasonable manner does not require an employer to act impeccably with respect to the employee: Comcare v Martinez (No2) 302 ALR 608. However, a failure to observe written policies prescribed for managing employee conduct must be regarded as prima facie evidence of a failure to execute action in a reasonable manner. The extent of any departure from a mandatory policy is a relevant consideration, and minor mistakes in its application might be disregarded. The extent, however, to which a failure to follow the policy resonates in the outcome of that process is a matter which cannot be disregarded. In the present case, the repeated failure by Ms Wieczorek’s supervisors to make, or retain, written records about the steps taken to manage her underperformance is more than a technical breach of their obligations. In this case, it has deprived the decision maker on the claim for workers compensation of valuable evidence as to the reasonableness of the steps taken to manage that underperformance. The policy itself describes the keeping of records by managers as crucial, for reasons which should be obvious.
The Tribunal was referred by Comcare to two cases involving reasonable administrative action in the context of performance management: Wilson and Comcare [2010] AATA 396 and Findlay and Comcare [2013] AATA 324. The s 5A exemption was found to apply in both cases. The factual circumstances of both, however, can be distinguished from those of the present case. The Tribunal notes, for example, that in both cases adequate documentary records of performance management steps were maintained and the applicants were apprised of their right to have a support person present. It was also put to the Tribunal by Ms Wieczorek that the employer’s failures in 2015 were systemic. That submission cannot be accepted, since it appears that the failures in process are attributable to the inexperience of Ms Wieczorek’s supervisor, who had not previously managed an employee’s underperformance by herself. That she was apparently acting in accordance with advice from HR is irrelevant; if that was the advice, it was clearly flawed.

It was put to the Tribunal by Comcare that the process used here was the most benign form of performance management, and that a more relaxed approach to the published procedures should be tolerated in that context. The Tribunal is reluctant, by virtue of the precedents its decisions set, to pitch standards of behaviour required of managers in the Australian Public Service (and elsewhere) at unsustainably high levels. Errors of judgement in these circumstances are inevitable, and must be allowed for. However, the errors exhibited in relation to the management of Ms Wieczorek’s performance were no mere failure to tick procedural boxes. The errors negated the injunction to managers, emphasised in the Managing Underperformance policy, that this must be a fair and proper process at all stages. The errors deprived the process of fairness.
The Tribunal considers that the steps taken by the Department in managing Ms Wieczorek’s underperformance between December 2014 and May 2015 was reasonable administrative action not taken in a reasonable manner, and as such Comcare cannot avail itself of the exemption in s 5A(1). It follows that Ms Wieczorek is entitled to compensation under the Act in respect of her injury of May 2015.
The reviewable decision is set aside, and instead the Tribunal decides that Ms Wieczorek suffered an injury, pursuant to s 14 of the Act, on or about 21 May 2015.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

..........................[sgd]..............................................
Associate
Dated: 27 June 2017

Date(s) of hearing: 1, 2, 3, 22 May 2017

Counsel for the Applicant: Jason Moffett

Solicitors for the Applicant: Lander & Co

Counsel for the Respondent: Kristy Katavic

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	1, 2, 3, 22 May 2017
Counsel for the Applicant:	Jason Moffett
Solicitors for the Applicant:	Lander & Co
Counsel for the Respondent:	Kristy Katavic
Solicitors for the Respondent:	Australian Government Solicitor