FEDERAL COURT OF AUSTRALIA

Comcare v Martinez (No 2) [2013] FCA 439

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decisions of the Administrative Appeals Tribunal in application 2011/3380 be set aside, being the decision made on 14 November 2012 and the decision made on 19 November 2012 dealing with costs.

3.    Application 2011/3380 be remitted to the Administrative Appeals Tribunal for determination in accordance with law.

4.    The respondent pay the applicant’s costs of this appeal, as agreed or taxed.

5.    Pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1982 (Cth), a costs certificate be granted stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of:

(a) the costs incurred by the respondent in relation to the appeal, and

(b) any costs payable to the applicant, Comcare, as a result of Order 4.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This appeal on a question of law concerns the words of exclusion “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” in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). “Injury”, as defined, does not include a disease, injury or aggravation so suffered.

2    Ms Martinez sought compensation for a condition: adjustment disorder with depressive reaction. Comcare accepted that Ms Martinez suffered from an injury, and that the injury was significantly contributed to by her employment.

3    Comcare, on 4 March 2011, denied liability under s 14 of the SRC Act on the basis that Ms Martinez’ injury resulted from reasonable administrative action taken in a reasonable manner under s 5A of the SRC Act, a decision affirmed on review on 25 July 2011.

4    On 14 November 2012, the Administrative Appeals Tribunal (the Tribunal) set aside the decision under review and remitted it to Comcare under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

5    Comcare then appealed to this Court on a question or questions of law under s 44 of the AAT Act.

6    Four main issues arose on the appeal. The first issue was whether there were other administrative actions which were concurrent causes of the injury but which the Tribunal did not decide were not reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. The second was whether the Tribunal erred in law in making certain findings. The third was whether the Tribunal erred in law by not giving adequate reasons for its decision. The fourth was whether the Tribunal denied procedural fairness to the applicant Comcare in finding that Ms Ward, the supervisor of Ms Martinez, did not give adequate consideration to the particular circumstances of Ms Martinez. The respondent submitted that the second issue in particular did not give rise to a question of law: Comcare v Etheridge (2006) 149 FCR 522.

The statutory provisions

7    Section 5A provided:

5A Definition of injury

(1)    In this Act:

injury means:

(a)    a disease suffered by an employee; or

(b)     an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)     an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

(2)     For the 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 notice of appeal

8    In a further amended notice of appeal to this Court under s 44 of the AAT Act, filed by leave on 3 May 2013, the following questions of law were stated:

2.1    Did the Administrative Appeals Tribunal (the Tribunal) fail to consider a relevant factor, or misapprehend the matters of which it had to [sic] satisfied in reaching a decision, in setting aside the reviewable decision on the basis that liability for the [sic] Ms Martinez’s adjustment disorder was not excluded by s 5A of the SRC Act in circumstances where the Tribunal:

a.    found that events in the National Indigenous Cadet Program (NICP) contributed significantly to the [sic] Ms Martinez’s condition; but

b.    did not make any finding that events in the NICP were administrative actions which were either not reasonable or not taken in a reasonable manner?

c.    found that management by Ms Ward as supervisor, including (but not limited to) meetings beginning 21 June 2010 contributed significantly to Ms Martinez’s condition; but

d.    did not make any finding that management by Ms Ward as supervisor between March and 21 June 2010 was administrative action which was either not reasonable or not taken in a reasonable manner or did not contribute significantly to Ms Martinez’s condition.

2.2    Was it open to the Tribunal to make the following findings, or any of them:

a.    Ms Ward’s approach of having one on one meetings with Ms Martinez in a separate room was bullying;

b.    Ms Ward’s approach of having one on one meetings with Ms Martinez in a separate room was insensitive;

c.    Ms Ward’s approach of having one on one meetings with Ms Martinez in a separate room was not conducting administrative action in a reasonable manner;

d.    Ms Ward’s management of Ms Martinez was not tolerable or fair;

e.    Ms Ward’s management of Ms Martinez meant she did not undertake the management action in a reasonable manner?

2.3    Was it open to the Tribunal to conclude in light of the facts it found that Ms Martinez’s adjustment disorder was not excluded by s 5A of the SRC Act?

2.4    Did the Tribunal give adequate reasons for its decision?

2.5    Did the Tribunal’s finding that Ms Ward did not give adequate consideration to the particular circumstances of Ms Martinez constitute a denial of procedural fairness?

9    The grounds were as follows:

4.1    The Tribunal erred in law in setting aside the reviewable decision on the basis that liability for Ms Martinez’s adjustment disorder is not excluded by s 5A of the of the [sic] SRC Act, despite:

a.    finding that events in the National Indigenous Cadet Program (NICP) contributed significantly to Ms Martinez’s condition; and

b.    not making any finding that events in the NICP were administrative actions which were either:

i.    not reasonable; or

ii.    not taken in a reasonable manner.

c.    finding that management by Ms Ward as supervisor, including (but not limited to) meetings beginning 21 June 2010 contributed significantly to the [sic] Ms Martinez’s condition; and

d.    not making any finding that management by Ms Ward as supervisor between March and 21 June 2010 was administrative action which was either not reasonable or not taken in a reasonable manner or did not contribute significantly to Ms Martinez’s condition.

4.2    The Tribunal erred in law making [sic] each of the following findings, as none of them were reasonably open to the Tribunal:

a.    Ms Ward’s approach of having one on one meetings with Ms Martinez in a separate room was bullying;

b.    Ms Ward’s approach of having one on one meetings with Ms Martinez in a separate room was insensitive;

c.    Ms Ward’s approach of having one on one meetings with Ms Martinez in a separate room was not conducting administrative action in a reasonable manner;

d.    Ms Ward’s management of Ms Martinez was not tolerable or fair;

e.    Ms Ward’s management of Ms Martinez meant she did not undertake her management action in a reasonable manner.

4.3    The Tribunal erred in finding that the mere possibility of so-called alternative approaches, namely simply requesting advice, meant the administrative action was not taken in a reasonable manner. As a matter of law, that possibility could not support a finding that the administrative action was taken in a manner which was not reasonable.

4.4    The Tribunal erred in finding that administrative action which is taken in a manner which could reasonably be anticipated would result in an employee feeling humiliated is action taken in an unreasonable manner.

4.5    The Tribunal erred in concluding that Ms Martinez’s adjustment disorder was not excluded by s 5A of the SRC Act as this conclusion was not reasonably open on the facts it found.

4.6    The Tribunal erred in law in failing to give adequate reasons for its decision as:

a.    its Reasons for Decision (at paragraphs 85, 91 and 82 [sic] in particular) do not make it clear whether the Tribunal concluded that Ms Ward’s management of Ms Martinez was:

i.    reasonable administrative action that was not undertaken in a reasonable manner; or

ii.    administrative action that was both unreasonable and not undertaken in a reasonable manner.

b.    it failed to give reasons which adequately explained the basis upon which it reached the findings/conclusions set out at 4.2(a)-(e) [sic] above.

4.7    The Tribunal erred in law in finding that Ms Ward did not give adequate consideration to the particular circumstances of Ms Martinez when neither the documents filed in the Tribunal nor the way the hearing was conducted disclosed that such a finding might be made.

10    An appeal to this Court under s 44 of the AAT Act is on and limited to a question or questions of law.

The Tribunal’s reasons

11    The findings of fact made by the Tribunal, substantially in the Tribunal’s words, were as follows.

12    The Tribunal found that in October 2005 Ms Martinez began working at the Department of Education, Employment and Workplace Relations (the Department) in the National Indigenous Cadet Project Program (NICP). She became a permanent employee in June 2006. In December 2009, Ms Martinez moved to the employment team. From that time, her supervisor was Ms Deborah Ward.

13    Ms Ward commenced weekly meetings with Ms Martinez in March 2010 with a view to improving her work performance. On 21 June 2010, Ms Ward implemented a more formal work improvement process. The two met in a spare office or meeting room and Ms Ward kept notes of the meetings and the outcomes expected. On 17 August 2010, Ms Ward discussed a Work Improvement Plan with Ms Martinez. Following this session, on 19 August 2010, Ms Martinez sought counselling from Mr John Cameron through the Employee Assistance Program.

14    On 30 August 2010, Ms Ward again discussed the Work Improvement Plan with Ms Martinez. Afterwards, on that day, Ms Martinez saw her treating general practitioner, Dr Glenn Dillon. His certificate and clinical notes referred to an exacerbation of her lumbar spine injury, and noted “adjustment disorder with depressed mood”. Dr Dillon certified her fit for work from 26 February 2010 to 22 October 2010, but strongly recommended she have “ongoing access to a psychologist”.

15    On 6 September 2010, Ms Ward informed Ms Martinez at a meeting that she had four weeks to respond and show improvement in her work. On Friday, 17 September 2010, Ms Martinez’ flex sheet was rejected for inaccuracy. Ms Martinez left work early to attend an appointment with Dr Dillon. She did not return to work that day, nor subsequently. She is still technically employed by the agency.

16    The Tribunal considered the date of Ms Martinez’ injury and found it to be 30 August 2010, being the date on which Ms Martinez first sought medical treatment for her adjustment disorder. It then satisfied itself that the medical evidence predominantly identified events in the workplace as the triggers for Ms Martinez’ psychological condition and that Ms Martinez’ condition was contributed to, to a significant degree, by her employment. Third it considered whether her condition was the result of reasonable administrative action taken in a reasonable manner in respect of her employment.

17    On this third matter, which gives rise to the first issue in the present appeal, the Tribunal said the events in the workplace that contributed significantly to Ms Martinez’ condition up to and including 30 August 2010 were:

•    events in NICP prior to Ms Martinez moving to the employment team;

•    management by Ms Ward as supervisor, including meetings beginning 21 June 2010; and

•    claims of bullying and harassment of Ms Martinez by Ms Ward.

In relation to the first of these bullet points, the Tribunal said the evidence had indicated that the actions of her NICP supervisors related to the performance of Ms Martinez as an employee were administrative actions. The Tribunal was satisfied on the evidence that the actions made a contribution to Ms Martinez’ adjustment disorder even though her psychological condition was not manifested until some eight months later. To the extent that these actions were directed at Ms Martinez, and not to the team as a whole, they were administrative actions. The second dotpointed administrative action could be characterised as action with respect to Ms Martinez as an employee in relation to her employment relationship with the agency. These actions would also have fallen within the informal counselling referred to in the non-exhaustive examples of administrative actions in s 5A(2)(a) and (e) of the SRC Act. The claims of bullying and harassment would not be covered by the exclusion in s 5A. Such action could not meet the objectively reasonable requirement in that provision.

18    The Tribunal then addressed whether the administrative actions were reasonable. It said at [70], in a paragraph taken from an earlier decision, Thompson and Comcare [2012] AATA 752 (31 October 2012), hence the reference to Mr Thompson:

What is ‘reasonable’ is a question of fact: Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331 per French J at [76]. Reasonableness is a chameleon-like concept, tailored to the specific circumstances, including in this matter, the criteria relating to Mr Thompson’s employment in the Australian Public Service: Re Lynch and Comcare (2010) 114 ALD 394 at [106]. As a minimum, to be reasonable the action must be lawful: Comcare v Chenhall (1992) 37 FCR 75; Re Lynch and Comcare (2010) 114 ALD 394 at [105]. The test is objective: Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331 per French J at [66] and requires an examination of whether the administrative action is ‘sensible, moderate, … tolerable [and] fair’: Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009) at [22]. The administrative action may be ‘not greatly less nor more than might be expected’ in the circumstances: Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009) at [22]. This requires an exercise of judgment about which, in borderline or difficult cases, minds may differ: Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331 per French J at [76].

The reference to Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009) was to Re Georges and Telstra Corporation Ltd [2009] AATA 731, a decision of Dr JD Campbell, Member of the Tribunal.

19    As to the events in the NICP prior to Ms Martinez moving to the employment team, the Tribunal said that Dr Dillon’s report referred to the cause of her condition being ‘protracted workplace harassment … prior to August 2010’; Dr Jungfer to ‘perceived harassment and bullying within the workplace’; and Dr Sheehan’s report noted that Ms Martinez ‘was experiencing some symptoms prior to 30 August 2010’. It was apparent from the evidence of Ms Martinez, Ms Henson, Mr Levi, Mr Seldon, Ms Stevenson and Mr Browne, that there was disharmony, tension and unhappiness in the NICP team while Ms Martinez was working there. That environment was the context for Ms Martinez’ complaints of bullying and harassment and was pertinent to Ms Martinez’ reaction to her treatment by Mr Seldon and Mr Browne, and to Ms Ward’s treatment of her.

20    The Tribunal said it accepted that Mr Seldon’s and to an extent, Mr Browne’s management of Ms Martinez led to her feeling patronised and stupid. The Tribunal accepted that Mr Seldon’s criticisms made her feel nervous, and she sought to move to the Brisbane office because of her unhappiness at work. Mr Seldon had clearly decided that Ms Martinez was incompetent and did not hide this from her and there was evidence that Mr Browne was inclined to highlight minor errors, including those of Ms Martinez, and make a “big deal” of them, as Mr Levi noted, in front of other people.

21    Ms Henson left the NICP in July 2009 and the branch about twelve months later. The removal of that support by Ms Henson and the substitution of Mr Browne and Mr Seldon as her supervisors in the latter half of 2009, meant that by the time Ms Martinez was redeployed to the employment team, the work Ms Henson had done in improving Ms Martinez’ self-confidence had been undermined. Ms Martinez’ perceptions of physical harassment, the correction of her work, and critical emails to the team, or comments on files on which she had worked, had led to her feeling patronised and inadequate and to a loss of her confidence and self-esteem. These perceptions were relevant to Ms Martinez’ reactions to Ms Ward’s interventions in 2010. The Tribunal said, at [75]:

The administrative actions by Mr Seldon and Mr Browne were administrative actions which were at the least insensitive, and were bordering on the unreasonable. It was significant that Mr Shiner, who had been in NICP longer than Mr Seldon, did not accede to Mr Seldon’s request that he commence underperformance with Ms Martinez because of her valued contribution to the NICP team; and that Ms Henson, when shown Mr Seldon’s remarks concerning Ms Martinez in his attachment to the agency’s response to the worker’s compensation application, said they were unfounded, untrue and cruel. The Tribunal makes no findings of unreasonableness on these administrative actions but they are the context in which the following discussion occurs.

22    As to management by Ms Ward as supervisor, including meetings beginning on 21 June 2010, the Tribunal said the evidence about Ms Martinez’ performance at work was variable. In the period to the mid-cycle of the 2009/2010 year, Ms Martinez had not been rated below “good”. It was not until the end of that year’s cycle, that her rating on key deliverables was reduced to “satisfactory”. She had never been rated “unsatisfactory”. Nonetheless, it was clear, on her own admission, that initially she had difficulties assimilating the type of work and adjusting to the work practices in the employment team. She said by March/April 2010, she began to understand what was required. Nonetheless, there was evidence from Mr Seldon, and Mr Browne about her deficiencies in performance while in the NICP, and from Ms Ward in 2010 that her work was slow, lacked attention to detail, and she had problems with some IT programs. Ms Martinez admitted that after she moved, she realised she was making silly errors in her work. She attributed these to her confidence having been undermined by her previous period under Mr Seldon and Mr Browne. Despite the ratings, and the comments by Mr Shiner that he had found her work to be of “an acceptable standard” and of Ms Henson, that Ms Martinez’ strengths were in contract administration and process work, both being skill-sets required in the employment team, the Tribunal accepted that Ms Martinez did need to improve her performance before she became an effective team member in the new area.

23    In those circumstances, the Tribunal said, it was reasonable for Ms Ward, being her immediate supervisor, to institute a program of education and assistance for Ms Martinez. That was good management practice. Nor was the Tribunal satisfied that Ms Ward’s introduction in March 2010 of informal meetings with Ms Martinez were an inappropriate means of doing so. Ms Ward initially offered Ms Martinez an hour a week for any assistance, but this was only availed of once. When Ms Ward’s concerns were heightened in March 2010 because Ms Martinez was not completing work in a timely fashion, she instituted a weekly meeting at their desk stations. This was reasonable administrative action. The real issue, the Tribunal said, was whether, when that process had not resulted in sufficient improvement, Ms Ward’s implementation in June 2010 of the more formal process of a weekly meeting in a separate room was reasonable.

24    The Tribunal said the introduction of some different approach was not unreasonable in the context of the history of the attempts by Ms Ward to institute work improvement processes for Ms Martinez. A question relating to reasonableness, however, was whether the more formal meetings were a form of disguised Underperformance Procedures process. Underperformance Procedures are referred to in clause 271 of the DEEWR Collective Agreement 2009-2011.

25    The Tribunal said the role of the supervisor, as set out in the Underperformance Procedures and as relevant to the feedback processes were to:

•    Ensure all employees have an Individual Performance and Development Plan (IPAD) in place;

•    Provide objective and constructive feedback about any areas where an employee’s performance is not meeting required standards as set out in their IPAD;

•    Discuss possible reasons for the underperformance with the employee.

26    Ms Martinez had an IPAD in place, dated 7 December 2009, which applied to her work in the employment team. It was signed by Ms Martinez in April 2010. However, it was not completed until comments were provided by Ms Ward on 2 August 2010. That raised a question of whether it was ‘in place’ in June 2010. Nonetheless, Ms Martinez would have been aware of its content as she had signed it in April. Key deliverables included “working with the IEP Employment panel profiles assuring all information is available in desired time frames”, and development of her writing skills. There was an Observable Work Behaviours field, including “being accountable and responsible for our work”.

27    The concerns expressed by Ms Ward in her documented meetings with Ms Martinez commencing on 21 June 2010 were reflected in the IPAD (tardy and inaccurate completion of the updating of the IEP Employment panel information), and work behaviours (including failure to update Work Plan, issues with attendance, tardy entry of leave applications). These were matters taken into account in the performance appraisal of Ms Martinez according to her IPAD. Any discussion by a supervisor of work behaviours, or deficiencies in output, was necessarily a matter which would be discussed at a meeting between a supervisor and an employee and issues such as these also come up in a performance appraisal.

28    The Tribunal was satisfied that the processes adopted by Ms Ward in June 2010 were akin, in their purposes, to those involved in the Underperformance Procedures as set out in that document. Ms Ward was focusing on concerns about Ms Martinez’ performance in nominated areas of performance and was taking steps to assist her to improve in these areas, means of improvement were identified, and the meetings were minuted and a timetable for outcomes implemented. The Tribunal said it was noteworthy, although she denied the correctness of her understanding at the hearing, that Ms Stevenson’s statement said that Ms Ward had commenced underperformance of Ms Martinez.

29     The Tribunal said it was aware, however, that processes of this kind would not be uncommon for managers who were assisting junior staff, and to designate these procedures as unreasonable because they appeared to be disguised underperformance processes, without more, would not be justified. The steps taken, however, should be seen in the light of the approach taken to their implementation.

30    The Tribunal said the final issue was whether the actions taken, principally by Ms Ward, were undertaken in a reasonable manner. In Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [23] Dr Campbell addressed the issue of what it meant to take action ‘in a reasonable manner’:

[T]he fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that may flow as the consequence of such administrative action being taken. In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further the circumstances of the individual that could have become known by simple enquiry should be considered. ...[W]hile the assessment of ‘in a reasonable manner’ relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee [is] usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instruction that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action ... taken.

(Tribunal’s underlining)

31    The Tribunal noted that use of a separate room for the meetings from 24 [sic] June 2010 onwards attracted a degree of notoriety attending the arrangement. Ms Martinez said others in the team noticed the interactions and used to quiz her afterwards and ask her what she had done wrong. So although the seriousness of Ms Martinez’ performance deficiencies justified Ms Ward changing her approach, there was a need to consider whether the approach adopted was reasonable.

32    At [89], the Tribunal said that conclusion was reinforced by the guideline on bullying. The guideline indicated that whether intended or not if, objectively, the effect of action by a supervisor was to humiliate, offend, or distress an employee and that this “should reasonably have been expected”, it amounted to bullying. Ms Martinez said as she was the only one being managed this way and everyone knew when she had these sessions with Ms Ward, “it was toxic”. In those circumstances, the Tribunal said, the approach adopted of having one on one meetings with Ms Martinez in a separate room, was insensitive. Ms Ward should have anticipated the reactions of others and its impact on the employee in a small team and that feelings of humiliation “should reasonably have been expected”. The Tribunal was, accordingly, satisfied that in accordance with the agency’s [sic] guidelines, this was bullying. To bully someone is not to conduct administrative action in a reasonable manner.

33    The Tribunal said these findings also raised the issue of whether Ms Ward took into consideration “the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action”, as well as “the circumstances of the individual that could have become known by simple enquiry”. These words were quoted from Re Georges and Telstra Corporation Ltd (2009) AATA 731 at [23]. Ms Ward, along with others in the team, was clearly aware that Ms Martinez was having problems in her personal life. Ms Martinez had told her so, and it was common knowledge in the teams in which she worked, not least through Ms Martinez’ telephone conversations, and her discussion of the issues with colleagues. Ms Ward’s awareness was indicated by her suggestion to Ms Martinez that she should consider taking leave to sort out her personal issues, a suggestion Ms Martinez rejected, and by her recommendation that she see an EAP counsellor. On balance the Tribunal found that Ms Ward did not fail to make sufficient inquiries of Ms Martinez about her circumstances. In other words, her actions in this regard were not taken in an unreasonable manner.

34    However, the Tribunal said, although aware, the issue was whether Ms Ward gave adequate consideration to these personal circumstances in her management of Ms Martinez. Ms Stevenson said it was not appropriate for an untrained supervisor to deal with psychological issues or serious personal problems. So much could be accepted. However, the “reasonable manner” test did not require “dealing with” the issue. Rather it only required taking it into consideration and modifying proposed administrative action if necessary. So although Ms Ward was sufficiently sensitive to identify that Ms Martinez had a need for such assistance and to recommend she take leave and seek counselling with the EAP service, that was not sufficient to show she had given consideration to Ms Martinez’ circumstances in her choice of administrative action in relation to Ms Martinez.

35    The particular administrative issue, the Tribunal said, was whether there were other actions she could have taken to address Ms Martinez’ performance needs without humiliating her by the more formal meetings in a separate room, given her knowledge that Ms Martinez had personal and professional issues, that she had poor self-esteem, and that the management she had instituted hitherto had not been sufficiently effective. The Tribunal considered there were alternative options. She could have sought advice from her superiors or from the human resources team about an alternative approach. Neither of these steps was beyond her personal or professional competence. She did not take them. Instead, to have implemented what could be characterised as an underperformance procedure without the protections for the employee built into that procedure and without going through the formal step of a finding of “unsatisfactory” at a performance appraisal, and to do so in a manner which could reasonably be anticipated would result in the humiliation of the employee, was not tolerable or fair in the circumstances and meant she did not undertake her management action in a reasonable manner.

Submissions

36    I turn to the submissions of the parties, by topic or ground.

37    As to failing to consider a relevant factor or misapprehending the matters of which the Tribunal had to be satisfied in reaching a decision, the applicant Comcare submitted that the Tribunal was not entitled to conclude that the exclusion contained in s 5A of the SRC Act did not apply merely by finding that certain administrative action did not satisfy the section. Before reaching this conclusion, the applicant submitted, the Tribunal needed to make findings that there was no reasonable administrative action taken in a reasonable manner that significantly contributed to the injury or disease: Hart v Comcare (2005) 145 FCR 29 at [22].

38    The applicant submitted that it was not entirely clear whether the Tribunal found that the three events set out in [69] of the Tribunal’s reasons contributed significantly to Ms Martinez’ condition cumulatively or each of them did so. If each of them did so then, the applicant submitted, the Tribunal was required to make a finding that each of these events did not constitute reasonable administrative action undertaken in a reasonable manner before setting aside the decision under review on the basis that Ms Martinez’ adjustment disorder was not excluded by s 5A(2) [sic] of the SRC Act. However, the Tribunal failed to make a finding that events in the NICP prior to Ms Martinez moving to the employment team did not constitute reasonable administrative action and in [75] of its reasons expressly declined to do so. On the same hypothesis, that the three matters referred to in [69] of the Tribunal’s reasons cumulatively contributed significantly to Ms Martinez’ condition then, the applicant submitted, the Tribunal was required to either find that events in the NICP prior to Ms Martinez moving to the employment team did not, on their own, contribute significantly to Ms Martinez’ condition or that those matters did not constitute reasonable action undertaken in a reasonable manner before concluding that s 5A did not apply. Either way, the applicant submitted, the Tribunal made an error of law in failing to properly deal with events in the NICP prior to Ms Martinez moving to the employment team.

39    The applicant next submitted that the Tribunal’s treatment of Ms Ward’s management of Ms Martinez as supervisor suffered from the same error. The applicant referred to Ms Ward’s management as including but not limited to meetings beginning on 21 June 2010 and “claims of bullying and harassment of Ms Martinez by Ms Ward” as a significant contributor to Ms Martinez’ condition. The applicant submitted that as the Tribunal found at [89] of its reasons that having one on one meetings with Ms Martinez in a separate room from 21 June 2010 onwards constituted bullying by Ms Ward, it was unclear what the Tribunal treated as falling within the second as opposed to the third bullet point set out in [69] of its reasons. In [79] the Tribunal found that Ms Ward’s management of Ms Martinez between March and June was reasonable administrative action before stating that the real issue was whether Ms Ward’s implementation in June 2010 of the more formal process of a weekly meeting in a separate room was reasonable. The applicant submitted that the real issue was whether there was any management of Ms Martinez by Ms Ward that significantly contributed to Ms Martinez’ condition which constituted reasonable administrative action taken in a reasonable manner. The applicant submitted the Tribunal failed to make the necessary findings to properly address this issue.

40    The respondent submitted in effect that there was no live issue as to other causes: neither party had relied upon, or made submissions about, those events in the context of the “reasonable administrative action” exclusion; the events themselves had not produced psychiatric symptoms at the time; and the events in the NICP team had made “a contribution” to the psychological condition for which treatment was sought more than eight months later, but not to the “significant degree” required by s 5B of the SRC Act. Further, the respondent submitted, in relation to events between March and June 2010 until 21 June 2010 the issue of performance or underperformance was not raised: whatever Ms Ward raised before that date was not about performance.

41    As to wrongly drawing inferences and reaching wrong conclusions, the applicant submitted it was a question of law within the meaning of s 44 of the AAT Act if the Tribunal: made a finding of fact which was unsupported by probative material; drew an inference which could not reasonably be drawn from findings of fact; made a finding or reached a conclusion that no rational or logical decision maker could have arrived at on the same evidence (cf adopted illogical reasoning); misconstrued the meaning of s 5A(2) [sic] of the SRC Act; or concluded that facts, fully found did not fall within s 5A of the SRC Act if it was not reasonably open to so hold.

42    The applicant began with [89] of the Tribunal’s reasons and, first, the conclusion within that paragraph that Ms Ward’s approach of having one on one meetings with Ms Martinez in a separate room was “insensitive”. The drawing of this inference was said to fall foul of the principles relating to the drawing of inferences referred to by Buchanan J in Tisdall v Webber (2011) 193 FCR 260 at [127]-[128].

43    The applicant focused next on the Tribunal’s conclusion that having these meetings was, in accordance with a Comcare guide, bullying. The Tribunal reached the conclusion that Ms Ward had bullied Ms Martinez because the guide indicated that whether intended or not if, objectively, the effect of action by a supervisor was to humiliate, offend or distress an employee and that this should reasonably have been expected, it amounted to bullying. The applicant, after referring to other aspects of the guide, submitted that those other aspects were not referred to or apparently considered by the Tribunal and the part of the guide relied on by the Tribunal was taken profoundly out of context and was not a probative or reasonable basis upon which the Tribunal could have concluded that Ms Ward had bullied Ms Martinez. The applicant submitted the Tribunal’s conclusion was one that no rational or logical decision maker could have arrived at on the same evidence and the Tribunal thereby fell into error.

44    Still under the heading wrongly drawing inferences and reaching wrong conclusions, the applicant next focused on [92] of the Tribunal’s reasons. There, the Tribunal framed the question it had to answer as whether there were other actions Ms Ward could have taken to address Ms Martinez’ performance needs without humiliating her by the more formal meetings in a separate room. The Tribunal then concluded that the action chosen was neither tolerable nor fair in the circumstances and meant Ms Ward did not undertake a management action in a reasonable manner. The applicant submitted that the only discernible reason given by the Tribunal was that there “were alternative options”, namely Ms Ward could have but did not seek advice from her superiors or from the human resources team about an alternative approach. The applicant submitted that ‘reasonable’ “in the context of s 5A(2) of the SRC Act should not be interpreted as requiring the absence of alternative options.” Even if the presence of alternative options was relevant, the Tribunal failed to properly identify any potentially better option for dealing with Ms Martinez’ performance issues or even an alternative option. Seeking further advice, the applicant submitted, did not properly constitute an alternative option. These matters, the applicant submitted, suggested the Tribunal misconstrued the terms of s 5A(2) [sic] and thereby created a more difficult test for Ms Ward to pass than the words of the section warranted. The applicant submitted it was not open to the Tribunal to conclude that the administrative action chosen by Ms Ward did not fall within s 5A(2) [sic] on the basis of [92] of its reasons.

45    The respondent submitted that the applicant’s complaints were simply about fact-finding on matters that were completely in the province of the Tribunal itself. The respondent submitted it was the consideration of the approach taken by Ms Ward in carrying out the “disguised underperformance processes” that raised the two issues of instituting meetings in a separate room when others could see the process was being undertaken and failing to enquire further into the personal circumstances of Ms Martinez as part of the assessment of the reasons for underperformance. “[D]isguised underperformance processes” was a reference back to the written Underperformance Procedures.

46    The respondent submitted that the Tribunal did not appear to use the bullying guide as mandating any conclusion it reached: rather, it considered that the bullying guide reinforced its view that it should look at the manner in which the meetings were conducted in order to determine whether or not the procedure followed was reasonable. Against that background, the Tribunal concluded that the approach adopted by Ms Ward was “insensitive”. The Tribunal went on to say that it was satisfied that in accordance with the guide this amounted to bullying and that accordingly it was not administrative action taken in a reasonable manner. The respondent submitted that the Tribunal’s conclusion was a conclusion of fact for which there was probative evidence.

47    As to failing to enquire into personal circumstances, the respondent submitted that the Tribunal gave consideration to whether Ms Ward gave adequate consideration to Ms Martinez’ personal circumstances. The respondent submitted that the Tribunal did not require very much of Ms Ward. It simply required her to take into account Ms Martinez’ personal issues and modify the proposed administrative action if necessary.

48    As to the applicant’s criticisms of [92] of the Tribunal’s reasons, the respondent submitted that these criticisms were also without substance. The Tribunal’s decision was not that the process adopted by Ms Ward was reasonable but there were other options that were more reasonable and therefore should have been adopted. There was no error in a finding of fact that it was unreasonable for a supervisor to adopt processes which would result in insensitivity towards, and likely humiliation of, the person being performance managed, rather than adopt processes which would not have those effects. The criticism made by the applicant of the Tribunal that it did not set out any potentially better options did not give rise to an error of law. Further, the Tribunal did set out alternatives which were more consistent with a lead-in to the Underperformance Procedures. Second, one option which was raised in final submissions before the Tribunal on behalf the respondent was that Ms Ward could have invoked the Underperformance Procedures themselves. The respondent submitted that [92] of the Tribunal’s reasons provided a succinct summary of exactly why the Tribunal found that Ms Ward had failed to undertake management action in a reasonable manner. That summary did not disclose any legal error, notwithstanding that the applicant did not like the factual outcome.

49    The applicant submitted in reply that the Tribunal did not accept the respondent’s principal submission that subjecting Ms Martinez to the process commenced in June 2010 was unfair and unreasonable because the formal requirements for invoking such procedures had not been established. The applicant disagreed with the respondent’s submission that the Tribunal did not appear to use the bullying guide as mandating any conclusion it reached because the Tribunal’s reasons did not identify any other basis for its conclusion that Ms Ward had bullied Ms Martinez and therefore not conducted administrative action in a reasonable manner. As to [92] of the Tribunal’s reasons, the applicant repeated its submission that it was the so-called presence of “alternative options” that Ms Ward did not take that in the Tribunal’s view rendered her management of Ms Martinez unreasonable.

50    As to denial of procedural fairness, the applicant submitted that in [91]-[92] of its reasons, the Tribunal concluded that Ms Ward had not undertaken her management action in a reasonable manner because she had not given adequate consideration to Ms Martinez’ personal circumstances in the manner in which she implemented the administrative action she considered necessary to improve Ms Martinez’ work performance. The applicant submitted that there was nothing in Ms Martinez’ statement of facts, issues and contentions or the witness statement she relied on that could reasonably have placed Comcare on notice that this was a live issue; Ms Martinez’ counsel’s opening and closing submissions did not contend that the case should be determined adversely to Comcare on this basis; nothing in the questioning of Ms Ward made it clear that such an adverse conclusion would be urged or might be drawn; and at the conclusion of the hearing the Tribunal indicated that “certainly Ms Ward tried to manage Ms Martinez’ personal circumstances” but how well she identified Ms Martinez’ personal circumstances “may be an issue”. On this basis the applicant submitted the Tribunal reached a conclusion that was both highly adverse to Comcare and critical to the Tribunal’s decision which Comcare had no reason to consider was a live issue.

51    The respondent submitted that the possibility that inadequate consideration of the personal circumstances of the person being managed might be a negative factor against the person carrying out the performance management was plain on the face of the procedures required to be followed within the Department. Those were procedures that Comcare, as a statutory decision-maker in this case, would be expected to know. Further, Ms Martinez’ “personal issues” were referred to in Ms Ward’s statement of evidence filed with the Tribunal on behalf of Comcare, and were plainly relevant in her mind to the onset of underperformance issues. What Ms Ward knew about those personal issues was also the subject of cross-examination by counsel for Ms Martinez and it was specifically put to Ms Ward that it was part of her job as a manager to be aware of stressful personal events happening in the life of a person she was managing, and take those into account in dealing with performance issues. Furthermore, the Tribunal itself asked specific questions of Ms Ward about the matters covered by paragraph 40 of the Department’s Performance Management and Development Policy, including whether she had taken into account “personal issues”, and what she thought was covered by that phrase. The respondent also submitted that in final submissions counsel for Ms Martinez emphasised that paragraph 40 of the Performance Management and Development Policy was very important in the context of the case and referred to the “obligation on managers to dig a bit deep” in understanding the personal circumstances of an employee being managed. Those submissions referred to the decision in Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [23]. The respondent also submitted that in final submissions to the Tribunal, her counsel specifically submitted that the failure of Ms Ward to acquaint herself adequately with relevant personal circumstances of Ms Martinez, including what she had been through earlier with Mr Browne and Mr Seldon, was another reason why the administrative action taken was not taken in a reasonable manner. Thus, the respondent submitted, Comcare had every opportunity to make whatever submissions it wanted to about how Ms Ward took into account Ms Martinez’ personal circumstances, as required by paragraph 40 of the Department’s Performance Management and Development Policy.

52    In reply, the applicant submitted that its complaint was not that it could not have known that whether adequate consideration was given to the respondent’s personal circumstances was of adjectival relevance to the proceedings. The applicant’s complaint was that this issue was never raised, by either the respondent or the Tribunal, as an issue arising in the proceedings and therefore the possibility of an adverse conclusion was not obviously open on the known material. Cross-examination and submissions relating to whether Ms Ward sufficiently enquired into Ms Martinez’ personal circumstances was a different issue. The Tribunal specifically found that Ms Ward did not fail to make sufficient inquiries about Ms Martinez’ circumstances and her actions in this regard were not taken in an unreasonable manner.

53    As to inadequate reasons, the applicant submitted that the final sentence of [85] and [91] and [92] of the Tribunal’s reasons did not make it clear whether the Tribunal concluded that Ms Ward’s management of Ms Martinez was reasonable administrative action that was not undertaken in a reasonable manner or administrative action that was both unreasonable and not undertaken in a reasonable manner. The references to such things as the “choice of administrative action”, “an alternative approach [being open]” and Ms Ward instead choosing to implement an underperformance procedure that was not tolerable or fair left real room for doubt.

54    The respondent submitted that it was quite clear from [85] of the Tribunal’s reasons onwards that it was dealing with the question of whether the actions taken by Ms Ward were undertaken “in a reasonable manner”. The real question, as the Tribunal saw it, was how Ms Ward went about the implementation in June 2010 of the more formal process of a weekly meeting in a separate room. The Tribunal’s detailed consideration of that question was set out in [86] and following of the Tribunal’s reasons. The respondent submitted it was quite clear both from the heading and the content of the relevant paragraphs that it was the reasonableness of the manner of carrying out the administrative action that the Tribunal was considering.

55    In reply, the applicant submitted that if the Tribunal was only dealing in [85] onwards with the question of whether the relevant actions were taken in a reasonable manner, the Tribunal’s consideration in [91]-[92] of matters relating to the administrative action selected by Ms Ward and whether other actions could have been taken constituted asking itself the wrong question in order to determine whether such action was “taken in a reasonable manner”.

Consideration

56    As to ground 4.1, the context is provided by the decision of the Full Court in Hart v Comcare (2005) 145 FCR 29 at [22] concerning concurrent matters referred to in the proviso in s 5A(1) “but does not include …”

57    The Tribunal in that case had identified two concurrent causes: the failure to obtain promotion, which was excluded by the then s 4(1), and the events connected with the process of promotion, which was not excluded by s 4(1). The Full Court was dealing with a submission that where there were two operative causes, one compensable and the other not, the approach taken by the Tribunal was correct. The Full Court held that the Tribunal’s approach was incorrect and said as follows:

[22]     The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry.

[23]     It will in any case be for the Tribunal to examine the facts, and assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, maybe a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion.

58    The applicant’s point in the present appeal is that the Tribunal did not exclude the results of one of the matters it had held to be within the proviso and instead focussed exclusively on whether another matter it held to be within the proviso was reasonable administrative action taken in a reasonable manner. The Tribunal at [69] found that events in the NICP prior to Ms Martinez moving to the employment team contributed significantly to her condition up to and including 30 August 2010. The expression “contributed to, to a significant degree” is of statutory significance: see s 5B of the SRC Act.

59    Although later in the same paragraph the Tribunal said that the actions, the events in the NICP, made a “contribution” to Ms Martinez’ adjustment disorder that was for the purpose of noting the gap in time between those events and the manifestation of her psychological condition some eight months later. I would not construe the absence of the adjective “significant” as intended to convey a different concept when the Tribunal referred a second time in that paragraph to the contribution the events in the NICP made. Further, the Tribunal then considered at some length, at [72]-[75] the character of the administrative actions in the NICP. It would not have needed to do so if those actions were not ones which were, within s 5A of the SRC Act, causally related to the respondent’s condition. As the applicant submitted, that consideration by the Tribunal confirms that its reasoning was that the events in the NICP had made a significant contribution to Ms Martinez’ condition.

60    The Tribunal concluded that consideration by stating: “The Tribunal makes no findings of unreasonableness on these administrative actions …” However, in my view, this demonstrates error of law because the Tribunal should have made a finding one way or the other. This is because if those actions, being a concurrent cause, had been reasonable administrative action taken in a reasonable manner then the proviso in s 5A(1) would have operated to prevent the respondent’s psychological condition being an injury as defined in that section.

61     Even if there was no live issue between the parties as to other causes, as contended for by the respondent in this Court, the Tribunal by its reasoning identified such a cause. It follows that in the present case the applicant is not subject to the strictures referred to in Commissioner of Taxation v Raptis (1989) 89 ATC 4994 at 4999 per Gummow J and by the Full Court in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18, that is:

There must be some difficulty ... in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this court.

62    As to the second limb of this ground, management by Ms Ward before 21 June 2010, in my view a different analysis applies because the Tribunal did not, and was not required to, analyse discretely the administrative actions constituted by the management of Ms Martinez by Ms Ward. All of those actions were taken by the same person and in the same administrative unit. The whole period of management by Ms Ward is said to have contributed significantly to Ms Martinez’ condition. It does not appear the parties put submissions suggesting a differential analysis for the two periods. It is, in my view, putting too much emphasis on “including” in the expression “including meetings beginning 21 June 2010” in [69] of the Tribunal’s reasons to treat the events before 21 June 2010 as constituting of themselves and separately a significant contribution.

63    I am not persuaded that there was any failure by the Tribunal to take into account a mandatory relevant consideration in respect of this second limb or that it otherwise erred in law in that respect. Commissioner of Taxation v Raptis (1989) 89 ATC 4994 applies.

64    I therefore uphold grounds 4.1.a. and b. but reject grounds 4.1.c. and d.

65    I turn now to questions of law 2.2 and 2.3 and the corresponding grounds 4.2, 4.3, 4.4 and 4.5.

66    In my opinion, it is not necessary in this case to consider the Tribunal’s findings of fact or drawing of inferences because its reasons showed that it misconstrued the statutory proviso in s 5A(1) of the SRC Act and thus erred in law.

67    The beginning of the error is seen at [70] of the Tribunal’s reasons where the Tribunal said that to decide whether the administrative action was taken in a reasonable manner “requires an examination of whether the administrative action is “sensible, moderate,… tolerable [and] fair”. This proposition was derived from Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [22] which was in turn derived from definitions of the word “reasonable” in the Concise Oxford Dictionary. In Re Georges and Telstra Corporation Ltd the Tribunal said:

[22]     I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.

68    But in statutory interpretation it is one thing to use a dictionary definition to identify a range of possible meanings of a word: it is another to treat those different words in the definition as if they were synonyms for the word in its statutory context. No doubt the other words used in a dictionary definition have meanings which overlap with the word used in its statutory context but it is unlikely that they have the same meaning. As the Full Court said in Robert Bosch (Aust) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education (2012) 206 FCR 92 at [68]:

Although dictionaries give a number of meanings for the word…, we agree with the observation of the Full Court in Polo/Lauren Company LP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266 at [24]:

It is convenient to pause to consider the assistance that dictionary definitions, if any, provide to such questions of statutory interpretation. The common law has long approved of dictionary definitions to assist in statutory interpretation (see eg R v Peters (1886) 16 QBD 636 at 641 per Lord Coleridge CJ), but while this is a useful reference point, and indeed the approach taken by the learned first instance judge and by counsel, a dictionary definition is not conclusive and must be used with caution. As Mason P in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 noted at [28]:

A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose.

See also Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560.

69    This approach to the word “reasonable” in its statutory context was not immaterial as may be seen from the final statement made by the Tribunal in its analysis at [92] where the Tribunal said that what Ms Ward did “was not tolerable or fair in the circumstances and meant she did not undertake a management action in a reasonable manner.”

70    A further error of statutory construction, where the Tribunal was, in my opinion, also distracted from the statutory language was in the use it made of the Comcare OHS Guide. This guide said it was to provide advice to individuals who believed they had experienced, or were experiencing, bullying in the workplace.

71    It was not the source of the information which led the Tribunal into error but the treating by the Tribunal of the matters in the guide as establishing that the administrative action was not taken in a reasonable manner within the meaning of s 5A(1) of the SRC Act.

72    It will be recalled that the Tribunal said that the guide said that “whether intended or not if, objectively, the effect of action by a supervisor is to humiliate, offend or distress an employee and that this ‘should reasonably have been expected’, it amounts to bullying” and to bully someone is not to conduct administrative action in a reasonable manner.

73    However, in my opinion, the impact on the employee cannot of or by itself establish whether or not administrative action was taken in a reasonable manner within the meaning of s 5A(1), but this is the effect of the Tribunal’s reasoning. The Tribunal, in its reasons, does not set out any consideration of the fuller circumstances, such as whether there was another convenient location for the meetings, whether Ms Martinez asked for the meetings to be conducted elsewhere, whether it was evident that Ms Martinez was upset by the location of the meetings or whether, in a small group of a very few employees working in juxtaposition to each, any other administrative action to improve Ms Martinez’ performance would have been noticed by the other employees.

74    The point is underlined in that the Tribunal misunderstood or misapplied the guide. On page 1 of the guide the following is set out:

This guide provides information including:

>    what bullying is and is not

>    examples of bullying behaviour

>    dealing with bullying behaviour

>    what to expect from a Comcare occupational health and safety (OHS) investigation.

Bullying is a recognised OHS hazard. Bullying is not acceptable in any workplace and should not be tolerated.

2. WHAT IS BULLYING?

Bullying is repeated unreasonable behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to a person, or group of persons, which creates a risk to health and safety.

Workplace bullying can be:

> intended—where actions are intended to humiliate, offend, intimidate or distress, whether or not the behaviour did in fact have that effect

> unintended—which although not intended to humiliate, offend, intimidate or distress, did cause and should reasonably have been expected to cause that effect.

(Emphasis in original)

75    The Tribunal, in its reasons, did not address the issue of “repeated unreasonable behaviour” which is the first part of the description of bullying in the guide. Further, the Tribunal did not address section 6 of the guide which is entitled “What is not Bullying?” and discusses the interrelationship of reasonable management action and workplace bullying. After stating that a single incident does not constitute workplace bullying although it may be distressing or harmful to the individual, the guide stated:

REASONABLE MANAGEMENT ACTION

It is important to distinguish between your manager/supervisor exercising his/her legitimate authority at work, in a proper and reasonable way, and instances of bullying. Management action is reasonable if conducted fairly, transparently and in line with approved processes. Feedback provided appropriately with the intention of assisting you to improve your work performance, behaviour, or directing and monitoring workflow, does not constitute bullying if it is conducted in line with approved processes.

76    The significance of the error may be illustrated by the consideration that, as submitted by the applicant, some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work.

77    The error made by the Tribunal at [89] was to be distracted from what was or was not reasonable administrative action taken in a reasonable manner in respect of the employee’s employment within the meaning of s 5A of the SRC Act by applying a different statement made for a different purpose, which statement in any event the Tribunal took out of context and misunderstood. It was not the mere fact of misunderstanding the guide that constitutes the error of law but the consequent misunderstanding of the meaning of the statutory language in s 5A which it was the Tribunal’s task to apply.

78    In my opinion, even if the Tribunal did not use the guide as mandating its conclusion, as submitted by the respondent, it certainly applied the bullying guide and reached its conclusion on the basis of that guide or part of it. That the error was not immaterial is put beyond doubt by reason that, in its conclusions at [92], the Tribunal paraphrased its earlier conclusion that the administrative action was taken in a manner which could reasonably be anticipated would result in the humiliation of the employee and thus incorporated its earlier discussion of bullying.

79    As to the use by the Tribunal in [89] of the adjective “insensitive”, which the applicant contended constituted an error of law, it is not clear to me that the Tribunal used that word as a synonym for “unreasonable” and I am not persuaded that, if it was a finding of fact, it was a finding of fact for which there was no evidence. Also, as part of a larger analysis I do not consider that the use of the word “insensitive” itself shows an error of law.

80    As to [92] of the Tribunal’s reasons, as I have said the error in relation to bullying is carried forward into the Tribunal’s analysis. So also carried forward is the reference to what is tolerable or fair as synonyms for what is administrative action taken in a reasonable manner within s 5A(1). Each of these errors vitiates the analysis and conclusion in [92].

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. However, in this paragraph, the Tribunal did not reason that the alternative options would effect a remedy to the administrative problem of Ms Martinez’ underperformance or provide a program of education and assistance for her. For that reason, in my opinion, the alternative options identified by the Tribunal, that is, Ms Ward seeking advice from her superiors or from the human resources team about an alternative approach, could not, at that level of abstraction, assist in the conclusion that the administrative action taken by Ms Ward was not taken in a reasonable manner. It follows, in my opinion, that the Tribunal’s approach to alternatives reveals a further misconstruction of the proviso in s 5A(1).

82    The Tribunal referred to Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 a case which concerned s 18D of the Racial Discrimination Act 1975 (Cth) which provided:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)    in the performance, exhibition or distribution of an artistic work; or

(b)     in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)     in making or publishing:

(i)    a fair and accurate report of any event or matter of public interest; or

(ii)     a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

In my view, since context is a large part of statutory construction, it is not appropriate to start from a context so remote from the SRC Act, particularly given the international law background to s 18D. I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.

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.

84    In my opinion, for the reasons I have given, ground 4.2 is made out on the basis that paragraphs a., c., d. and e. of ground 4.2 establish the Tribunal’s misconstruction of the statutory proviso in s 5A(1) of the SRC Act. I do not find it necessary to consider the other bases on which ground 4.2 was put. Grounds 4.3 and 4.4 of the notice of appeal are also made out for the same reason.

85    The respondent submitted that the question of law numbered 2.2 and the corresponding ground 4.2, in particular, did not give rise to a question of law and relied on Comcare v Etheridge (2006) 149 FCR 522 at [28]-[29] where Branson J, with whom Spender and RD Nicholson JJ agreed said:

[28]     It is not useful to examine separately each of the other purported questions of law stated in the four notices of appeal. The following question, which is taken from the notice of appeal filed in WAD 123 of 2005, is illustrative of their nature:

“whether the evidence and other material before the Tribunal was such that the Tribunal could only find that, upon inhaling or ingesting an asbestos fibre or fibres in the course of his employment by the Commonwealth, Mr Ethridge [sic] suffered at the time of that inhalation or ingestion:

a)    an injury simpliciter;

b)    ‘personal injury by accident arising out of or in the course of his employment by the Commonwealth’ within s 9(1) of the 1930 Act;

c)    ‘personal injury arising out of or in the course of [his] employment … by the Commonwealth’ within s 27(1) of the 1971 Act;

d)    ‘an injury (other than a disease)’ within paragraph (b) of the definition of “injury” in s 4(1) of the SRC Act”

(Emphasis in original.)

[29]    The invitation, which is inherent in the above question, to examine the evidence and other material before the Tribunal is sufficient to show that it is not “a question of law” within the meaning of s 44(1) of the AAT Act (see, Birdseye at [18]). It is at best a mixed question of law and fact. Looked at more critically, it is open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of the controversy that came before the Tribunal for determination. This is not an invitation that the Court may accept on an appeal under s 44(1) of the AAT Act.

86    However, in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 Allsop J, with whom Lindgren and Emmett JJ agreed, explained Comcare v Etheridge (2006) 149 FCR 522 as follows, Collins being a case involving s 120 of the Veterans’ Entitlements Act 1986 (Cth). His Honour was considering an argument, the first of two arguments, that even if the Tribunal had gone beyond the process of assessment and had entered into the prohibited domain of fact finding, prohibited because of the terms of s 120 of the Veterans’ Entitlements Act 1986, that was not a question capable of raising a question of law for the purposes of s 44 of the AAT Act, and that the Tribunal could only be found to have erred if the conclusions it reached were unreasonable or capricious:

[55]     The first of these two arguments rests on a number of Full Court decisions including Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at [18]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; Comcare v Etheridge (2006) 149 FCR 522; and HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291. These authorities, it was submitted, prevented an error of the kind asserted (that the Tribunal exceeded what was legally open to it to do in the formation of its opinion for s 120(3)) being capable of being a question of law for the purposes of s 44 of the AAT Act. This was so, it was submitted, because the Court would need to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law. I reject this argument. Nothing in any of the cases referred to at the commencement of this paragraph gainsays the proposition that a properly framed question of law directing the Court's attention to the manner in which the Tribunal failed to discharge its obligations according to law under s 120(3) can be the subject of an “appeal” under the AAT Act. All those cases were directed at the necessity for there to be a proper and precise framing of a “question of law” to found the statutory authority of the Court under s 44 of the AAT Act to dispose of the appeal. Nothing in these cases limits the reach of s 44 to questions of law divorced from the need to look at facts. If, as here (on the hypothesis put forward on behalf of Mrs Collins), the Tribunal has begun a process of fact finding by preferring some evidence to other evidence or by rejecting conflicting material in the formation of its opinion as to reasonable hypothesis, it would have exceeded the statutory task required of it under s 120(3) of the Veterans Act. There can be no doubt that a properly framed question of law raising that legal error would be the legitimate subject of an “appeal” under s 44 of the AAT Act. All the cases relied upon were dealing with what has become an endemic problem in the failure of applicants in appeals under s 44 to frame the question as a question of law, including, but not limited to, the practice of raising of factual issues or simply expressing subject matter to set the outer limits of debate before the Court.

87    It follows that it is too simple a proposition to say that there cannot be a question of law within s 44 of the AAT Act merely because it is necessary to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law.

88    In my opinion, at least to the extent which question of law 2.2 and the corresponding ground 4.2 pose the question whether those findings show that the Tribunal misconstrued the statutory language, then the question and the corresponding ground raise a question of law within s 44 of the AAT Act. Having said that, as I have indicated above, I would not regard a finding by the Tribunal that, for example, Ms Ward’s management of Ms Martinez was not tolerable or fair as being, of itself, a finding of fact but rather an evaluative conclusion: see, in a different context, Pfizer Pty Ltd v Birkett [1999] FCA 1778 at [11]-[13] per Mathews J. In judicial review, in considering findings of fact which are said to be legally impeachable and thus go beyond the simple fact finding referred to by Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77, it is, in my view, impermissible to elide findings of primary facts and an evaluative conclusion or opinion formed on or from those primary facts. This is because, at least, the evaluative conclusion would in most circumstances be founded on a number of primary facts and to challenge an evaluative conclusion on the ground that the fact did not exist or there was an absence of probative material would tend towards impermissibly canvassing the merits. It will be recalled that in Waterford v The Commonwealth (1987) 163 CLR 54 Brennan J said at 77 that “There is no error of law simply in making a wrong finding of fact”.

89    As to denial of procedural fairness, ground 4.7, the applicant contends that Comcare was not sufficiently on notice that an issue in the proceedings was whether Ms Ward had given adequate consideration to Ms Martinez’ circumstances in her choice of administrative action in relation to Ms Martinez. In the applicant’s submission, the difference is between knowing of the personal circumstances on the one hand and adequately taking them into account in the management of Ms Martinez on the other.

90    This cannot be decided in the abstract but has to be considered as a matter of practical injustice.

91    In my opinion there has been no denial of procedural fairness in this respect: knowledge of Ms Martinez’ personal circumstances and acting on that knowledge sufficiently to constitute taking (reasonable administrative) action in a reasonable manner are sufficiently related. The Tribunal’s separate identification of the point was, in my opinion, one of emphasis for the purposes of analysis and, in the context of procedural fairness, did not serve unfairly to create a new issue.

92    Further, in my view, the issue was adequately put to Ms Ward in cross-examination, particularly in the following question and answer:

… I am saying, if you’re thinking about strategies about improving her work performance, you need to be fully cognisant of what limitations there are on her capacity to focus that arise out of the personal issues, don’t you?

No, I don’t think… I need to know any more than what I did know.

93    The point was also substantially addressed in closing submissions to the Tribunal on behalf of the present respondent in the context both of paragraph 40 of the Department’s Performance Management and Development Policy under the heading “Managing Performance Concerns” and also by reference to the decision of the Tribunal in Re Georges and Telstra Corporation Ltd [2009] AATA 731 which includes a reference to considering the particular circumstances of the individual in the context of taking administrative action in a reasonable manner.

94    No objection or adverse comment in closing submissions to the Tribunal was made by experienced counsel then appearing for Comcare.

95    As a further test of practical injustice, the applicant before this Court did not explain what it would have done in addition or differently in the Tribunal to address the question of consideration of Ms Martinez’ personal circumstances in Ms Ward’s management of Ms Martinez.

96    For these reasons, in my opinion, ground 4.7 fails.

97    As to the alleged inadequate reasons, ground 4.6, I do not accept that the Tribunal did not adequately set out its reasons.

98    There is no requirement to set out reasons which the Tribunal did not have, so as to treat the provisions of ss 43(2) and 43(2B) of the Administrative Appeals Tribunal Act as imposing a normative requirement: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

99    In my opinion, contrary to the applicant’s submission, it is clear that it was the reasonableness of the manner of carrying out the administrative action that the Tribunal was considering. The Tribunal began this section of its reasons by stating: “The final issue is whether the actions taken, principally by Ms Ward, were undertaken in a reasonable manner.” Again, contrary to the applicant’s submissions, it is not open to it, under this head, to raise the question of misconstruction that it seeks to raise.

100    Further, despite, perhaps, the usefulness for analysis of separating out the question of “reasonable administrative action” and “reasonable manner”, there is no dichotomy in the sense that the question of “reasonable manner” cannot, as a matter of law, encompass a consideration of alternative actions. The composite statutory question is whether a disease, injury or aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

101    I therefore reject the applicant’s ground 4.6.

102    I also note that in Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554; [2009] FCAFC 137 the Full Court said at [50]:

Common to the conclusions expressed in Repatriation Commission v O’Brien (1985) 155 CLR 422 by Brennan J and by the Full Court in Dornan v Riordan (1990) 24 FCR 564 remains the prospect of setting aside a decision of the Tribunal in circumstances where the inadequacy in the reasons permits an inference that the decision-making power has not been exercised in accordance with law, or where the deficiency is such that it is impossible to ascertain whether there was any other error in the decision-making process. In such circumstances it may be doubted whether there is such a stark difference in result as may have been assumed between the approach of Brennan J in O’Brien and that of the Full Court in Dornan. The discretion conferred by s 44(4) and (5) of the AAT Act may well permit an order setting aside a decision under appeal.

In my view it is implicit in the first alternative, that is, where the inadequacy in the reasons permits an inference that the decision-making power has not been exercised in accordance with law, that the subject-matter of that inference also be raised as an error of law in its own right. Where that is done, there may be little or no point in pleading the inadequacy of reasons as a ground of error in its own right.

Conclusion

103    The appeal is allowed, the decision of the Tribunal is set aside and the case is remitted to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal.

104    The applicant submitted that the Court should direct that the Tribunal which hears the case as remitted should not be constituted by the same members. However, as I observed in Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) (2011) 282 ALR 24 at [130], with reference to the considerations referred to in Comcare v Broadhurst (2011) 192 FCR 497, I prefer to leave the matter to the President of the Tribunal. The Tribunal is a mature institution. The President, in deciding the constitution of the Tribunal, will be able to take into account all factors including the findings of fact made by the Tribunal as constituted to date and also the fact that that Tribunal made findings going to the conduct of officers of the Department. The President would also be able to take into account the need to revisit findings of fact the Tribunal has made and that the appeal has not been limited to a bare question of statutory construction.

105    If the appeal was allowed, the respondent sought a certificate under s 6(1) of the Federal Proceedings (Costs) Act 1982 (Cth) which provides:

Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

“Federal appeal” is defined in s 3(1) to include “(g) an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal”. The applicant did not oppose such a grant. There is no doubt the appeal succeeded on a question of law and the question was one of some significance. In the circumstances I exercise the discretion to grant a costs certificate.

Associate:

Dated:    17 May 2013