FEDERAL COURT OF AUSTRALIA

Comcare v Stewart [2019] FCA 365

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Subject to order 3, the applicant is to pay the respondent’s costs, as agreed or assessed.

3.    If either party wishes to contend for a costs order different to the order proposed in order 2, they notify my associate and the other party within 5 business days of the date of these orders and thereafter a timetable to determine that issue will be set.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from a decision of the Administrative Appeals Tribunal made on 2 October 2018. The appeal is on, and limited to, questions of law.

2    As found by the Tribunal, Mr Paul Stewart, the applicant, had been employed by the National Library of Australia (NLA) in his current position, Director of Human Resources (Executive Level 2), since July 2010. At all material times, Mr Stewart’s supervisor was Mr Gerry Linehan, NLA Assistant Director-General, Corporate Services.

3    The Tribunal decided:

The reviewable decision dated 15 June 2016 denying liability to compensate [Mr Stewart] in respect of adjustment reaction with anxious mood is set aside.

In substitution, [Comcare] is liable to compensate [Mr Stewart] in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury being adjustment disorder with anxious mood suffered by him on 15 January 2016.

The reasons of the Tribunal

4    At the commencement of the hearing before the Tribunal, the parties informed the Tribunal that they had reached agreement that the applicant suffered an “ailment”, as defined in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), that was contributed to, to a significant degree, by his employment with the NLA, such that he had a “disease under s 5B(1) of the SRC Act, which met the positive limb of the definition of “injury” in s 5A(1)(a). The parties further agreed that the onset of the applicant’s “disease” followed the meeting held between the applicant and his supervisor Mr Linehan on 15 January 2016. The parties disagreed as to the characterisation of this meeting, specifically whether it was “reasonable administrative action taken in a reasonable manner” in respect of the applicant’s employment, and therefore whether the exclusionary provision in the concluding words of s 5A(1) of the SRC Act applied. If the exclusionary provision applied, the applicant’s ailment would not be an “injury” for the purposes of the SRC Act, and he would not be entitled to compensation under s 14 of the SRC Act.

5    A summary of the Tribunal’s reasons follows.

6    The NLA was closed for the Christmas/New Year period from 24 December 2015 to 4 January 2016. Mr Stewart travelled to Sydney on two occasions during this period to visit his elderly mother. She was in a very frail and distressed state and Mr Stewart brought her back to Canberra where she stayed with him at his home while he attempted to make arrangements for her to be medically assessed and treated. The Christmas/New Year break meant that these services could not be arranged until the week beginning 4 January 2016. Mr Stewart was at the time the sole carer of his mother who was very unwell and bed-bound.

7    On the evening of Sunday 3 January 2016 at 7:17 pm Mr Stewart sent Mr Linehan an email headed “Urgent Absence” to notify him of his necessary absence from work the following day.

8    The following morning, Monday 4 January 2016 at 8:40 am, Mr Linehan sent Mr Stewart an email. The email asked Mr Stewart to give Mr Linehan a call in the morning.

9    Mr Stewart phoned Mr Linehan at 10:04 am that morning and they briefly discussed his absence from work to allow him to care for his mother. During the short six minute call, which Mr Stewart described as an “uncomfortable conversation”, he became very distressed and began to cry. This made Mr Linehan uncomfortable and he told Mr Stewart to call him back later when he was better.

10    Mr Stewart remained in contact with his staff during his absence that week, including one of his EL1s, Ms Helen Franz, and he cancelled the leave he had scheduled from 7 to 10 January 2016. It was a difficult period for Mr Stewart as he was the sole carer for his mother and he was actively arranging for her ACAT assessment. His sister had accused him of abduction which caused him further distress. He was not sleeping and was losing weight. He asked his mother’s treating doctor (Dr Masters) for advice. She wrote a medical certificate for him to cover the period for which he would require carer’s leave.

11    On Friday 8 January 2016 at 4:15 pm Mr Stewart attempted to make further contact with Mr Linehan by phone. The call went to voicemail and Mr Stewart left a message advising Mr Linehan that he would need more time to care for his mother.

12    On Sunday 10 January 2016 at 10:05 pm Mr Stewart emailed Mr Linehan to confirm the telephone message. The body of the email was as follows:

Dear Gerry

I rang for you Friday afternoon but you were out of your office.

I regret very much to tell you that I think I’ll be off work for the next fortnight. Mum is still very frail and I am literally with her constantly while she’s awake. Her mid afternoon nap offers some opportunity to wash her clothes and so on.

I have contacted ACT community services for an urgent ACAT assessment to get some in-home care and am very hopeful that can occur this week. All going well services should be available by end-Jan which will enable me to return to work.

On the upside, mum has responded well to my care and is much less ill than she was, I think. Further scheduled medical treatment should help.

Gerry, I’m very conscious about the effect of my absence on the EA negs; perhaps getting that James fellow on, as we discussed before Christmas, would enable things to tick over? I could also shepherd him by phone. I’ll leave you to consider.

Speak soon.

With best regards,

Paul

13    On Monday 11 January 2016 at 10:52 am Mr Stewart sent Mr Linehan an email attaching a photo of the medical certificate he had obtained from his doctor.

14    On Monday 11 January and Tuesday 12 January 2016 Mr Stewart again telephoned Mr Linehan to keep him updated about his absence. During one of these phone calls, Mr Linehan told Mr Stewart he would like him to come into work from leave to attend a “handover meeting”. This was confirmed in an email from Mr Linehan to Mr Stewart sent at 12:37 pm on Tuesday 12 January 2016. It read, in part:

Can we meet quickly including with Helen to get that handover and for me to understand what the likely scenario is regarding your absence and how I can best manage the situation. This afternoon (I understand unlikely now given alternate arrangements you may need to set in train) or Thursday or Friday afternoon are suitable from my end. I will have a support person with me so I can determine likely outcomes and we can collectively devise a management plan. I am happy to meet at your place.

I will then be able to consider and agree on your leave proposals/requirements accordingly.

15    Mr Stewart phoned Mr Linehan at 1:42 pm on 12 January 2016 to confirm that he would go into work to attend the proposed meeting on Friday 15 January at 2:30 pm.

16    At [25]-[30], the Tribunal made a number of findings as to what occurred at the meeting. I set these paragraphs out in full as they are at the heart of what is submitted by Comcare to reveal the legally erroneous approach of the Tribunal:

25.    On 15 January 2016 the Applicant took his mother with him to the NLA as there was no one who could care for her at home in his absence. She sat outside his office while he attended the scheduled meeting. He was told by Ms Franz that Mr Linehan was waiting for him in his office with another person, a rehabilitation provider. He was surprised by this as he thought that the purpose of the meeting was to facilitate a ‘handover’ to Ms Franz. When he entered the room Mr Linehan introduced him to Ms Jenny Henderson and said she was there as a support person for the Applicant.

26.    What transpired during the 30 minute meeting was described to the Tribunal by the Applicant and Ms Henderson. Ms Henderson told the Tribunal that from her point of view the meeting was to allow her to be introduced to the Applicant and for her to understand his requirements and what assistance she could provide. She’d been made aware by Mr Linehan that the Applicant had been off work for two weeks and a medical certificate had been provided. She assumed her presence and role at the meeting would have been explained in advance to the Applicant by Mr Linehan.

27.    The Applicant said that before the meeting commenced he was asked by Mr Linehan whether he was comfortable with Ms Henderson attending the meeting. He agreed to her being there as he felt he could not object to her presence. He briefly described his mother’s circumstances and the arrangements he was making to organise her care arrangements. He explained to Mr Linehan and Ms Henderson that he had not slept properly for three weeks and had lost weight as a consequence of the pressure he’d been under since taking on a full-time caring role. Ms Henderson confirmed in her evidence that the Applicant looked exhausted and anxious and appeared to be struggling to recall information, but that he engaged positively with the process and interacted well.

28.    The Applicant explained that he would initially need to take some leave and then return to work part-time or work from home until he was able to resume full-time work when his mother’s care arrangements were finalised in a few weeks. According to the Applicant, Mr Linehan was not satisfied with the Applicant’s proposal and said he needed his HR Director to be full-time, not part-time or working from home, and he required certainty as to how long the Applicant would be unable to meet his full-time responsibilities. In her evidence, Ms Henderson confirmed that Mr Linehan emphasised that the HR Director role was a full-time role and that it would be very difficult if not impossible to do on less than full-time hours and if the Applicant couldn’t work full time he’d have to take leave. The Applicant could not provide Mr Linehan with the certainty he required as he was still in the process of putting into place his mother’s care arrangements. He told Mr Linehan that if the only acceptable option was full-time work then he would take paid carer’s leave for the period of his absence from work. Ms Henderson told the Tribunal that both parties were expressing frustration and emotions were raised.

29.    The meeting then turned to the email sent by the Applicant to Mr Linehan in the evening on Sunday 10 January 2016 which Mr Linehan described as ‘disrespectful’. The Applicant was shocked at this accusation, particularly as the implication was that he had breached the APS Code of Conduct. Mr Linehan did not explain what he meant by the accusation and did not show him the email although he had it in his hand. The Applicant began to feel very anxious and panicky about whether disciplinary consequences might follow Mr Linehan’s accusation. He explained why he sent the email, that is, because he was unable to speak to Mr Linehan when he phoned him on the previous Friday afternoon. In her evidence, Ms Henderson confirmed that the email was described by Mr Linehan as ‘disrespectful’ and said it was her understanding that Mr Linehan objected not to the content of the email but to the fact the Applicant sent an email rather than phoning to advise him that he was unable to attend work the following day. Both parties raised their voices and were speaking over each other about whether the email should have been sent. Mr Linehan was fixated on the communication method which in her view displayed a ‘lack of judgement’.

30.    The Applicant did not know what else he could say or do as Mr Linehan was not articulating what he required from him in relation to his work and carer responsibilities. It became apparent that no agreement could be reached and Ms Henderson suggested that they draw the discussion to a close and she would speak to the Applicant the following week. The meeting concluded shortly thereafter. According to the Applicant, he was left in a state of confusion as he did not understand what had been the purpose of the meeting as there had been no discussion of the ‘handover’ for which the meeting had been arranged.

17    At [31]-[36], the Tribunal made findings about events following the meeting. On 19 January 2016 Mr Stewart submitted an application for workers compensation.

18    At [42], the Tribunal relevantly identified four questions raised by the exclusion from the definition of “injury” in s 5A(1):

1.    Was the meeting ‘administrative action’ taken in respect of the Applicant’s employment?

2.    Was the administrative action ‘reasonable’?

3.    Was the action ‘taken in a reasonable manner’?

4.    Was the condition suffered by the Applicant ‘as a result of’ the administrative action?

19    A negative answer to any of these four questions would prevent the exclusion applying.

20    At [43] and following, the Tribunal addressed the first of these four questions. The Tribunal referred to: Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; 199 FCR 463 at [31], [57], [60] and [73]-[74]; Long v Comcare [2016] FCA 737 at [20]-[24], per Tracey J; and Comcare v Drinkwater [2018] FCAFC 62; 158 ALD 244 at [51], [60] and [67]-[70].

21    At [51], the Tribunal identified the purpose of the meeting, which it found was to facilitate the handover to Ms Franz who would be Acting Director, HR during Mr Stewart’s absence. At [52]-[54], the Tribunal said:

52.    The Tribunal finds that the purpose of the meeting was for Mr Linehan to obtain information from the Applicant about the nature and likely duration of his absence from work so he could determine how the Applicant’s absence would impact on the staffing requirements of the Library in the coming weeks. The leave arrangements of the Applicant and whether he would be able to work part-time or from home were part of these discussions but they were ancillary to the primary focus of the meeting which was Mr Linehan’s management of staff and resources during the Applicant’s absence. Such ‘operational’ matters are not ‘administrative’ issues specific to the Applicant’s employment, and therefore the meeting cannot be said to satisfy the requirements of ‘administrative action’.

53.    Even if the meeting is considered to be ‘administrative’ not ‘operational’ in the manner outlined above, there was no relevant ‘action’ taken at the meeting. The meeting concluded without any decision being made by Mr Linehan as to whether the Applicant would be permitted to work reduced hours, work part-time or from home, or take carer’s leave while he saw to his mother’s care arrangements. It was agreed that the Applicant and Ms Henderson would be in contact the following week to further discuss his needs and requirements. The Applicant submitted a leave request for Personal/Carers Leave Without Cert Paid after the meeting, and this was approved by Mr Linehan on 18 January 2016. Accordingly, as there was no decision or action taken at the meeting on 15 January 2016, it cannot be said to satisfy the requirements of ‘administrative action’.

54.    Having decided that the action relied upon by the Respondent was not ‘administrative action taken … in respect of’ the Applicant’s employment, it is not necessary for the Tribunal to consider the further issues. However, for completeness the further issues, namely whether the administrative action was reasonable and undertaken in a reasonable manner, are considered below.

22    At [56] and following, the Tribunal considered the second of these four questions, whether the administrative action was reasonable. The Tribunal noted that s 5A(2) was not an exhaustive list and said, at [58]:

58.    The Tribunal finds that the evidence demonstrates that the meeting on 15 January 2016 was not for the purpose of counselling or disciplining the Applicant in relation to his work performance or his compliance with leave procedures or for any other purpose provided for in s5B(2) of the SRC Act.

23    At [59] and following the Tribunal considered the third of these four questions, whether the administrative action was taken in a reasonable manner. The Tribunal there said that whether or not an administrative action was undertaken reasonably is a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned, referring to Stieglitz v Comcare [2010] AATA 263 and Thompson and Comcare [2012] AATA 752, at [61]. The Tribunal also set out an extract from Drenth and Comcare [2011] AATA 582 at [75] and [76]:

To determine whether the actions were reasonable involves an objective judgment, taking into account all of the circumstances in which they occurred, and determining whether they were rational, lawful and not irrelevant or disproportionate to what was required; and the question of what was “reasonable” does not involve determining whether the action could have been done more reasonably or in a different way more acceptable to the decision-maker: see Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105 at [78]–[80], and the helpful analysis of Professor Robin Creyke, Senior Member, and Dr Peter Wilkins, Member, in Re Lynch and Comcare (2010) 114 ALD 394.

As I understand it, no criticism is directed to this paragraph of the Tribunal’s reasons, subject to what I note at [62] below.

24    At [62]-[63], the Tribunal set out relevant principles from Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272 and Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42. Again, as I understand it, no specific criticism is directed to these paragraphs of the Tribunal’s reasons.

25    At [64], the Tribunal set out the following from Wiegand v Comcare Australia [2002] FCA 1464; 72 ALD 795 at [31]:

... there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.

26    I next set out the Tribunal’s reasons at [65]-[66] in full as they contain, in their context, the Tribunal’s dispositive reasons on this question:

65.    The Tribunal finds, based on the evidence before it, that had the meeting on 15 January 2016 been ‘administrative action’ that it was not undertaken reasonably. The Applicant was on leave and attended the NLA with his mother for whom he was caring for the purposes of a meeting to discuss what Mr Linehan described in his email as a ‘handover’. The Applicant was known by Mr Linehan to be in a distressed state as a result of him unexpectedly assuming the care of his mother, and it was obvious at the beginning of the meeting that he was tired, exhausted and anxious. The Applicant was further unsettled by the attendance of Ms Henderson at the meeting as Mr Linehan had not explained her role at the meeting in his email to the Applicant. There was no agenda provided prior to or at the meeting and it did not cover the matter for which it was arranged, namely a ‘handover’. Mr Linehan’s refusal to consider the flexible working arrangements proposed by the Applicant, and his fixation on the use of email as a method of communication including his declaration that it was ‘disrespectful’, and its implication that the Applicant had breached the APS Code of Conduct, caused the Applicant to grow increasingly anxious and frustrated. The conduct of the meeting by Mr Linehan was such that the Tribunal finds that it was not undertaken in a ‘reasonable manner’.

66.    The Tribunal finds that if the meeting on 15 January 2016 was “reasonable administrative action”, it was not undertaken in a “reasonable manner” in respect of the Applicant’s employment. The exclusionary provision in section 5A(1) of the Act does not apply and the Applicant’s ailment is an “injury” for the purposes of the SRC Act.

27    At [67] and following, the Tribunal considered the fourth question, whether the condition suffered by the applicant was “as a result of” the administrative action. After considering Comcare v Martin [2016] HCA 43; 258 CLR 467 at [45] and [47], and Lim v Comcare [2017] FCAFC 64; 250 FCR 298 at [45] the Tribunal said it was satisfied that had the meeting not occurred the applicant would not have suffered the ailment he did. No error of law was suggested in this respect.

The notice of appeal

28    Comcare’s notice of appeal states the following as questions of law:

Questions of law

1.    Did the Tribunal misconstrue the phrase “administrative action in respect of the employee's employment” as it appears in the exclusion from the definition of “injury” in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act)?

2.    Did the Tribunal fail to take into account a relevant consideration or otherwise err in law in its handling of the question of whether “administrative action in respect of” the employment of the Respondent (Mr Stewart) was “reasonable”?

3.    Did the Tribunal take into account an irrelevant consideration or otherwise err in law in its handling of the question of whether “reasonable administrative action” Mr Stewart's employment was taken in a “reasonable manner”?

29    The grounds relied on were as follows:

  1.    The Tribunal misconstrued the phrase “administrative action in respect of the employee's employment” as it appears in s 5A(1) of the SRC Act.

a.    The Tribunal erred in concluding that a meeting that Mr Stewart attended on 15 January 2016 (the meeting) was not, or did not include, “administrative action in respect of” his employment.

b.    The Tribunal should have concluded that the meeting was, or included, “administrative action in respect of” Mr Stewart’s employment.

c.    On the findings of fact it otherwise made, the Tribunal should have concluded that Mr Stewart’s “adjustment disorder with anxious mood” was suffered as a result of “administrative action in respect of” his employment.

2.    Assuming that the meeting of 15 January 2016 amounted to, or included, “administrative action in respect of” Mr Stewart's employment, the Tribunal was obliged to consider whether the meeting was “reasonable” administrative action.

a.    The Tribunal limited its consideration of that question to the non-exhaustive list of examples set out at s 5A(2) of the SRC Act.

b.     But those examples do not limit what amounts to “reasonable administrative action” for the purpose of s 5A(1) of the SRC Act.

c.     The Tribunal should have considered whether the meeting was, or included, “reasonable” administrative action for the purpose of s 5A(1) of the SRC Act.

  d.     The Tribunal did not do so.

  e.    The Tribunal thus:

i.    failed to take into account a relevant consideration;

ii.    failed to deal with all of the matters that were before it;

iii.    failed to provide reasons for its decision; and/or

iv.    otherwise erred in law.

f.    In the alternative, the Tribunal impermissibly limited its consideration to the “purpose” of the meeting. The Tribunal should have considered whether the meeting was, or included, “reasonable administrative action”. It did not do so.

g.    In the alternative, the Tribunal failed to consider whether reasonable informal counselling occurred at the meeting.

3.    Assuming that the meeting of 15 January 2016 amounted to, or included, “reasonable administrative action in respect of” Mr Stewart’s employment, the Tribunal was obliged to consider whether the meeting was “taken [or occurred] in a reasonable manner”.

a.    The judgment required in that connection was whether the meeting occurred in a reasonable manner, not whether it could have occurred “more reasonably”.

b.    The judgment was not the test set out in Wiegand v Comcare Australia (2002) 72 ALD 795; [2002] FCA 1464 (Wiegand) at [31] (von Doussa J).

c.    However, the Tribunal evaluated the issue(s) before it by reference to the test in Wiegand and not by reference to an objective measure of reasonableness as required by s 5A(1) of the SRC Act.

d.    The Tribunal thus took into account an irrelevant consideration or otherwise erred in law in its handling of the question of whether “reasonable administrative action in respect of” Mr Stewart’s employment was “taken in a reasonable manner”.

e.     Alternatively, the reasonable possibility that the Tribunal’s attention to the authority of Wiegand sent it on a wrong line of inquiry regarding whether the meeting of 15 January 2016 was conducted in a “reasonable manner” cannot be excluded: Smith v Comcare (2013) 212 FCR 335 at [39] (Buchanan J, with whom Greenwood J agreed). The appropriate relief is to set aside the decision under review and remit the matter to the Tribunal for reconsideration according to law in that circumstance.

The central statutory provision

30    The terms of s 5A(1) were:

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 parties’ submissions

Question 1

31    Comcare submitted that contrary to the findings of the Tribunal, essentially at [52]-[53], the alleged injury was a result of administrative action in respect of Mr Stewart’s employment. Comcare submitted that the Tribunal impermissibly limited its consideration to the purposes or primary focus of, or whether a final decision or ultimate action was taken at, the meeting of 15 January 2016. Contrary to that approach, Comcare submitted, the only question the Act required to be asked was whether the events at the meeting amounted to “administrative action” taken in respect of Mr Stewart’s employment. In Martin at [45], the High Court said that the relevant “administrative action” need not be the sole cause of an “injury”. Comcare submitted that, assuming (but not accepting) that Mr Linehan’s management of staff and resources during Mr Stewart’s absence related to other aspects of his employment, the Tribunal acknowledged at [28] and [52] that Mr Stewart’s leave arrangements and whether he would be able to work part-time or from home were part of the meeting of 15 January 2016. The Tribunal also acknowledged, at [52], that part of the meeting was for Mr Linehan to obtain information from Mr Stewart about the nature and likely duration of his absence from work. The Tribunal further acknowledged, at [29], that the issue of whether Mr Stewart should have telephoned Mr Linehan, rather than sending an email, was part of the meeting. Those matters were “administrative action” taken in respect of Mr Stewart’s employment. Comcare referred also to Reeve at [33] and [60], Drenth v Comcare [2012] FCAFC 86; 128 ALD 1 at [22], Long, and Drinkwater at [70] and [73].

32    Comcare submitted that the meeting and events that occurred at it were action that was taken to enable both Mr Stewart and Mr Linehan to manage and facilitate Mr Stewart’s non-performance of his normal duties in order to care for his mother. A meeting that enabled an employer to obtain information from an employee about the nature and likely duration of that employee’s absence from work was “administrative action” taken in respect of that employee’s employment.

33    Comcare also submitted that, as acknowledged by the Tribunal at [29], the issue of whether Mr Stewart should have telephoned Mr Linehan (in accordance with the applicable leave policy and procedures), rather than sending an email, was part of the meeting. That discussion occurred in accordance with, or in the furtherance of, the leave policy and procedures that formed part of Mr Stewart’s terms and conditions of employment under the Public Service Act 1999 (Cth). Although the leave policy and procedures applied to more than one of the NLA’s employees, such a discussion – whether characterised as informal counselling or otherwise – was “administrative action” in respect of Mr Stewart’s employment: Drinkwater at [73].

34    Comcare submitted that “the Tribunal should have concluded that the alleged injury was suffered as a result of “administrative action” taken in respect of Mr Stewart’s employment. The Tribunal did not do so. That legal error arose due to a misconstruction, and thus misapplication, of the phrase “administrative action” for the purpose of the SRC Act. It was necessary to remit the matter to the Tribunal for reconsideration with a direction that the meeting of 15 January 2016 was “administrative action” taken in respect of Mr Stewart’s employment.”

35    Mr Stewart submitted that the Tribunal’s reasons for finding the meeting was not “administrative action” were at [52]-[53]. Although that conclusion was sufficient to prevent the exclusion applying to Mr Stewart’s ailment, the Tribunal proceeded to consider whether the meeting was reasonable and undertaken in a reasonable manner (the remaining elements in the exclusion). Mr Stewart submitted that if the Tribunal did fall into legal error in this respect, that error was inconsequential and could not have affected the Tribunal’s decision, referring to BTR PLC v Westinghouse Brake and Signal Co (Aust) Pty Ltd (1992) 34 FCR 246 at 253-254 (per Lockhart and Hill JJ). This was because the Tribunal did not leave the matter there, but proceeded to consider whether, assuming the meeting was “administrative action”, that administrative action was “reasonable” and had been undertaken in a reasonable manner. The Tribunal concluded that, if the meeting qualified as reasonable administrative action, it had not been taken in a reasonable manner. That was a sufficient basis to prevent the exclusion in s 5A(1) applying to Mr Stewart’s disease, even if the meeting was “administrative action”.

Question 2

36    Comcare next submitted that the Tribunal failed to properly consider whether the meeting was “reasonable”. Having referred to [58] of the Tribunal’s reasons, Comcare submitted the Tribunal did not specifically conclude that the meeting of 15 January 2016 was not “reasonable”. Nor did the Tribunal articulate how the matters set out at [58] of its reasons rendered the meeting of 15 January 2016 anything other than “reasonable”. Contrary to the requirements of the SRC Act, Comcare submitted, the Tribunal limited its consideration to the purpose of the meeting, and did not determine whether the meeting, and the events that occurred at it, met the objective quality of “reasonable”. The Tribunal’s reasons showed that it evaluated the issue of whether the meeting of 15 January 2016 was “reasonable” solely by reference to its purpose in the context of the non-exhaustive list of examples in s 5A(2) of the SRC Act.

37    Comcare submitted that the Full Court held in both Reeve, at [62]; and Drenth, at [21], that the non-exhaustive list of examples of “reasonable administrative action” in s 5A(2) did not confine the meaning of that expression as used in s 5A(1) of the SRC Act. That conclusion must be correct given the statutory language in the chapeau to s 5A(2) of the SRC Act.

38    Comcare submitted that on this ground the Tribunal also erred in law. It was necessary to remit the matter to the Tribunal with a direction that it consider whether the events at the meeting of 15 January 2016 were “reasonable”.

39    Mr Stewart submitted that the Tribunal, at [66], decided to leave this point undecided and focus on the question whether, if the meeting was reasonable administrative action, the meeting had been undertaken in a reasonable manner in respect of Mr Stewart’s employment. Mr Stewart submitted that the Tribunal did not allow Mr Stewart’s application for review on the basis of a finding that meeting did not qualify as “reasonable administrative action”. The Tribunal made its decision, that Comcare was liable to compensate Mr Stewart in respect of his “disease”, on the basis of an assumption that the meeting was “reasonable administrative action” and its finding that, if the meeting met that description, the meeting was not undertaken in a reasonable manner in respect of Mr Stewart’s employment. Any possible error raised by this ground, Mr Stewart submitted, was not consequential and could not have affected the Tribunal’s decision. Accordingly, any such error could not provide a basis for allowing Comcare’s appeal.

Question 3

40    Comcare submitted that the Tribunal erred, at [66], in concluding that the meeting was not “undertaken reasonably”. The critical passages of the Tribunal’s reasons were at [64]-[65]. Contrary to the approach of the Tribunal, the authority of Wiegand had no role to play in evaluating whether reasonable administrative action was taken in a “reasonable manner”. Comcare submitted that the test formulated in Wiegand applied only to the threshold question of whether an employee suffered a “disease”, and not an “injury”, before the SRC Act was amended on 13 April 2007. On the contrary, the text and structure of the SRC Act revealed that an employee must have suffered a “disease” – in the context of which reasonable or unreasonable perceptions might often arise – before consideration of whether such a “disease” was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his or her employment. Comcare submitted that the “reasonable administrative action” exclusionary provision had not been enacted at the time of the judgment in Wiegand. Contrary to the approach taken by the Tribunal, Comcare submitted, an employee’s perception that administrative action was not taken in a reasonable manner was not what was required by the exclusion from the definition of “injury” in s 5A of the SRC Act. Comcare referred to Martin at [46] and [48]. Comcare submitted that in the present case the Tribunal evaluated the events at the meeting of 15 January 2016 on the basis of Mr Stewart’s subjective perceptions or on grounds other than those required by the SRC Act. On this point also Comcare submitted it was necessary to remit the matter to the Tribunal with a direction that it exclude from its consideration the authority of Wiegand, the subjective psychological drivers or perceptions of Mr Stewart and the subjective impact on him of the events at the meeting of 15 January 2016.

41    Comcare submitted that in addition to the orders set out in its notice of appeal dated 30 October 2018, Comcare sought to be heard on the question of costs after the Court gave judgment.

42    Mr Stewart submitted that the Tribunal made the finding that, if the meeting was reasonable administrative action, it had not been taken in a reasonable manner because of the manner in which Mr Linehan conducted that meeting.

43    Mr Stewart submitted that the point raised in ground 3(a) (that the question was not whether the meeting could have occurred “more reasonably”) bore no relationship to the Tribunal’s reasoning. In fact, the Tribunal did not use that phrase, other than noting at [60] that another Tribunal had made the point (in Re Drenth and Comcare) that the question “does not involve determining whether the action could have been done more reasonably”. The terms in which the Tribunal referred to the passage from Re Drenth made clear that the Tribunal accepted it as an accurate statement of the law.

44    Mr Stewart submitted that Grounds 3(b) and (c) attacked what was said to be the Tribunal’s use of “the test in Wiegand”. The Tribunal did set out part of the reasons for judgment in Wiegand. However, when the Tribunal came to make its findings, at [65], the Tribunal did not use any of the language or the concepts from that case (which was not concerned with the operation of s 5A(1) of the SRC Act).

45    Indeed, Mr Stewart submitted, the Tribunal made it clear, at [61], by emphasising some of the words extracted from the earlier Tribunal decision in Stieglitz, and, at [63], from the judgment in Keen, that the Tribunal saw the question as dependent on “an objective measure of reasonableness” (the standard said to be the right standard in ground 3(c) in the Notice of Appeal). For that reason, Mr Stewart submitted, it could not be said that the Tribunal took into account an irrelevant consideration or otherwise erred in law in its handling of the question whether “reasonable administrative action in respect of” Mr Stewart’s employment was “taken in a reasonable manner” – as alleged in ground 3(d). Similarly, there was no “reasonable possibility that the Tribunal’s attention to the authority of Wiegand sent it on the wrong line of enquiry”, as ground 3(e) asserted. Rather, Mr Stewart submitted, the Tribunal made a series of findings of fact, at [65], which did not focus on Mr Stewart’s perception but on the objective reasonableness of Mr Linehan’s actions. Reasonableness of those actions was assessed “against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned”, as it was put in Stieglitz at [67], quoted by the present Tribunal at [61]. Similarly, the Tribunal’s specific findings of fact, at [65], demonstrated that the Tribunal approached the matter in the manner endorsed by the Federal Court in Martinez (No 2), and in Keen at 47-48 (Lander J) and 63 (Bleby J), extracts from which were quoted by the Tribunal in its reasons at [62] and [63].

46    In reply, Comcare submitted that the errors made by the Tribunal in handling the issue of whether Mr Stewart’s claimed “disease” was suffered as a result of “administrative action” that was “reasonable” were consequential and they affected the Tribunal’s decision. With reference to [54] of the Tribunal’s reasons, Comcare submitted that the Tribunal said that it was not necessary for it to consider the “further issues” because it had decided that the action relied on by Comcare was not “administrative action taken … in respect of” Mr Stewart’s employment. The Tribunal only evaluated whether the “administrative action” was “reasonable” and taken in a “reasonable manner” for completeness. Contrary to Mr Stewart’s submissions at [12], the Tribunal did not decide to “focus on” the question of whether the events at the meeting occurred in a “reasonable manner”. Those matters were very much ancillary to the Tribunal’s primary finding that the events at the meeting of 15 January 2016 were not “administrative action”.

47    Comcare also submitted that, in relation to Question 3, the Tribunal either did not evaluate the events at the meeting of 15 January 2016 by applying an “objective measure of reasonableness” or, in the alternative, the reasonable possibility that the Tribunal failed to apply such a standard could not be excluded. Also, although the Tribunal may have emphasised some words from Stieglitz and Keen, it was by no means “clear” that the Tribunal applied, or correctly applied, those words in purporting to evaluate the issues in this case. First, Comcare submitted, without conceding the correctness of the approach asserted, it was not clear from the language used at [65] of the Tribunal’s reasons that the Tribunal assessed Mr Stewart’s circumstances against what was known at the time and without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state of the employee concerned: cf Stieglitz at [67]. The Tribunal did not use those words, for example, in describing how (if at all) Mr Linehan’s actions at the meeting were anything other than reasonable. Second, Comcare submitted, the Tribunal did not make findings as to how (if at all) Mr Linehan’s actions were contrary to the “ordinary standards of reasonable employers” in all of the circumstances of the case: cf Keen at [63]. The Tribunal did not, for example, make any findings of fact as to what steps should have been taken by Mr Linehan to meet the “standards of a reasonable employer”. The Tribunal thus failed to apply such standards, or say how (if at all) Mr Linehan breached such standards, in all the circumstances.

48    Further, Comcare submitted, despite any suggestion that the Tribunal might have referred to correct legal tests at some other point in its reasons, it could not be denied that the Tribunal also inserted the entirely irrelevant passage from Wiegand – which eschewed the application of an “objective measure of reasonableness” – immediately before its consideration of the issues. The location of that paragraph indicated that it must have been a potent factor in the Tribunal’s consideration of the issues. And such a conclusion was supported by the Tribunal’s reliance on the subjective fact that Mr Stewart was purportedly “unsettled” by Ms Henderson’s attendance at the meeting, despite him objectively agreeing to her being there, at [27].

49    It therefore could not be concluded, Comcare submitted, that the Tribunal “made it clear” that it saw the relevant question as dependent on “an objective measure of reasonableness” in the manner asserted by Mr Stewart. Rather, the Tribunal focused on Mr Stewart’s subjective perception(s) or otherwise erred in law in purporting to make its findings of fact.

50    Comcare submitted that to the extent Stieglitz was inconsistent with the later judgments in Martin and in Martinez (No 2), insofar as they eschewed reliance on the subject of psychological drivers of the employee concerned, it must be regarded as incorrectly decided. The Tribunal’s findings did not demonstrate that it approached the matter in the manner endorsed by Martinez (No 2), Keen and by the Tribunal in Drenth. On the contrary, the Tribunal basically set out a list of subjective matters without saying how (if at all) they offended the requirements of the SRC Act by reference to the other authorities and cases to which it alluded, but did not actually apply, before its misplaced insertion of the ratio decidendi in Wiegand. It was by no means “clear” from the whole of the Tribunal’s reasoning that the Tribunal was not influenced by the observations in Wiegand. If it was said that the Tribunal’s reasons must be read as a “whole” then those reasons must include the passage from Wiegand, which the parties now agreed had no role to play in the application of s 5A(1) of the SRC Act in the circumstances.

Consideration

51    I am not persuaded that any errors of law made by the Tribunal in respect of Questions 1 and 2 infect the Tribunal’s consideration of Question 3. Having said that, I would have thought that the expression “disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” was best considered, at least ultimately, in a composite way, even though a decision-maker might wish to examine each element separately before coming to a conclusion.

52    Nevertheless, it is appropriate to consider the three questions posed by Comcare’s three questions of law and grounds.

53    I proceed on the basis that the reasons given by the Tribunal were the entirety of its reasons: see s 43 of the Administrative Appeals Tribunal Act 1975 (Cth).

54    I also proceed on the basis that the Tribunal’s reasons should be read in accordance with the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272, that is, the reasons are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

Question 1

55    In my opinion, the Tribunal, at [53], took too narrow a view of what is encompassed by the word “action” in the statutory expression “a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.” The Tribunal’s reasoning, in part, was that no relevant “action” was taken at the meeting because the meeting concluded without any decision being made. This is too narrow a view, at least in the present circumstances where the issue was whether the meeting itself constituted reasonable administrative action. The parties agreed before the Tribunal that the onset of the applicant’s “disease” followed the meeting.

56    I conclude on that basis that the Tribunal made an error of law in respect of this question since what is “action” must be closely related to what is “administrative action”. In my view, the Tribunal’s overly narrow view of “action” is, in this instance, necessarily related to the Tribunal proceeding, at [51]-[52], by identifying the purpose of the meeting and then characterising the leave arrangements of Mr Stewart, and whether he would be able to work part-time or from home, as ancillary to that primary focus or purpose.

57    Further, in my opinion, the Tribunal took too narrow a view of the concept of “administrative action” in circumstances where it was agreed that Mr Stewart’s “disease” followed the meeting. The Tribunal appears to have considered that the legislation required or permitted the approach it took, which was first to make a finding as to the purpose of the meeting and then to characterise other matters which arose in the course of the meeting as ancillary. This seems to me to have led to the Tribunal erroneously putting out of account the part of the meeting, which is not an insubstantial part, that did concern the particular employee’s employment. Put differently, the Tribunal, in my view, used the concept of the purpose of the meeting as a proxy for the character of the action. There is a substantial difference between the two. Flowing from that error as to the concept of purpose, the Tribunal then erroneously approached the relevant aspect of the meeting, which it described as the leave arrangements and whether the applicant would be able to work part-time or from home, both as a matter of purpose and as taking its purpose from the primary purpose which is found in [51].

58    For these reasons, Question 1 in Comcare’s notice of appeal should be answered: “Yes”. But this does not necessarily mean that Comcare’s appeal should be allowed, in light of what the Tribunal assumed at [66], that the meeting on 15 January 2016 was “reasonable administrative action”.

Question 2

59    To the extent that the Tribunal considered this issue, it did so at [56]-[58]. Although the Tribunal stated that the list in s 5A(2) was not exhaustive, the only issues it considered at [58] were the elements, which the Tribunal described as purposes, in s 5A(2). It is correct to say that the Tribunal referred to performance and compliance with leave procedures, but that was in the context of “the purpose of counselling or disciplining” the applicant which are actions described in ss 5A(2)(b) and (d).

60    I therefore find that the Tribunal would have erred in law in this respect if it had answered this question against Comcare. But in my view it did not complete its consideration of, and did not make a finding on, this issue. Nor was the Tribunal required to do so in light of its reasoning on the matters canvassed by Question 3, which provided an independent and lawful basis for its finding that the exclusionary provision did not apply. The Tribunal’s approach to that question, which as I explain below did not involve any material error of law, was to focus on the issue of whether what it assumed was reasonable administrative action was “taken in a reasonable manner” in respect of the employee’s employment.

61    On this basis and for these reasons, Question 2 in Comcare’s notice of appeal should be answered: “No”.

Question 3

62    Subject to one matter, at [59] the Tribunal set out what Comcare accepted was the correct approach to assessing whether the administrative action was taken in a reasonable manner. That is to say, whether or not an administrative action was undertaken reasonably is a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned. The qualifying matter is Comcare’s submission in relation to the effect of Martin. Subject to that matter, which concerned what Comcare first described by reference to Martin at [48] as the legally irrelevant issues of the employee’s perception and subjective psychological drivers of his reaction but later characterised as the operation of the exclusion not being dependent on them by reference to Martin at [46], Comcare did not argue that the present Tribunal’s references to Drenth, Stieglitz, Martinez (No 2) and Keen had led into error. Comcare did also add two minor qualifications regarding the application of those cases: first, that different words were not to be substituted for those in the statute; second, that any list of circumstances to be taken into account would not be the entire list of such matters. Comcare cited Martinez (No 2) for these propositions. Those qualifications were not in controversy between the parties to this appeal.

63    The High Court in Martin identified the single issue of principle to be resolved on the facts found by the Tribunal as whether the Tribunal was correct in law to conclude that the deterioration of the employee’s mental condition triggered by her contemplation of a perceived consequence of the decision was a disease which she suffered as a result of that decision within the meaning of s 5A(1). At [45], the High Court said that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What was necessary was that the taking of the administrative action was an event without which the employee’s ailment or aggravation would not have been a disease within the meaning of s 5A(1)(a) as defined in s 5B(1), that is, it would not have been contributed to, to a significant degree, by the employee’s employment. At [46], the High Court said that that reading conformed to the purpose of the exclusion. The High Court referred to the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 and said that the taking of administrative action in respect of employee’s employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. The High Court said this purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee’s reaction.

64    In relation to Martin, I understood Comcare to submit that the High Court, particularly at [46] but also at [48], held that “subjective psychological drivers of the employee’s reaction” were not so much legally irrelevant to the question whether reasonable administrative action was taken in a reasonable manner in respect of the employee’s employment, but rather that question was not to be approached as dependent only on those factors and could not depend on uncommunicated subjective perceptions. I accept the submission put on behalf of Mr Stewart that Martin at [46] does not require that no regard is to be paid to the effect which the administrative action has, and was observed by the person taking the administrative action, to have on the employee. It was put that it would be impermissible for the Tribunal to look only at the impact on the employee but this did not mean that the Tribunal could not look at that impact.

65    In effect, Comcare accepted that the matters set out at [59]-[63] of the Tribunal’s reasons would not otherwise have let it into error. Comcare’s key contention was that thereafter, at [64], and immediately before the Tribunal commenced its analysis of that issue at [65], the Tribunal referred to Wiegand, at [31] of that judgment.

66    As is common ground, Wiegand did not concern s 5A, which had not at that point been enacted. At that point, the definition of “injury” contained an exclusion in respect of a disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. That part of the definition did not require consideration by the Federal Court in Weigand as the Tribunal had not at that stage considered that issue.

67    In that case, a Professor Goldney had offered his opinion on the assumption that an incident or state of affairs to which Mr Wiegand was exposed in the course of his employment could only contribute to a material degree to an aggravation of his ailment if the incident or state of affairs constituted a significant breach of reasonable practice, so as to render Mr Wiegand’s perceptions objectively reasonable. It was in that context that von Doussa J stated his opinion that it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs complained of by Mr Wiegand contributed in a material degree to an aggravation of the depressive disorder suffered by him. For that to be the case there was no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, was one which passed some qualitative test based on an objective measure of reasonableness.

68    In my opinion the reference by the present Tribunal to Wiegand in relation to Question 3 could have led the Tribunal into error if that was what the Tribunal had applied. But this is an unusual case because the reference to Wiegand followed other, more numerous, references to cases which had not cited an incorrect test but accurately identified that the issue of whether reasonable administrative action was “taken in a reasonable manner” in respect of the employee’s employment was a question of objective fact, related to the specific conduct involved, was to be assessed without the benefit of hindsight, and did not involve asking whether the action could have been done more reasonably. For this reason, the issue has to be addressed as a matter of substance.

69    The matter for present resolution therefore becomes whether, in the context of all that preceded it from [59]-[64], the Tribunal’s reasons at [65] reveal error. As I have explained, the question arises in that way because immediately before the Tribunal’s reference to Wiegand it had stated accurate principles from other decisions and authorities.

70    Did the Tribunal in substance identify the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacted upon the worker, the circumstances in which the administrative action was implemented, and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer? Did the Tribunal in substance decide whether what it assumed for this purpose to be reasonable administrative action was taken in a reasonable manner by approaching it as a question of objective fact, to be determined against the ordinary standards of reasonable employers in all the circumstances of the case?

71    In my opinion, the reasons of the Tribunal are to be read as a whole and in light of the Tribunal’s findings about the meeting on 15 January 2016 at [25]-[30]. In particular I note that at [29] the Tribunal set out the evidence not only of Mr Stewart but also of Ms Henderson, who was the third person of the three who attended the meeting and who gave evidence about it.

72    Ms Henderson confirmed Mr Stewart’s evidence that Mr Stewart’s email sent to Mr Linehan in the evening of Sunday, 10 January 2016 was described by Mr Linehan as disrespectful and that she understood that Mr Linehan objected not to the content of the email but the fact that Mr Stewart sent an email rather than phoning Mr Linehan to advise him that he, Mr Stewart, was unable to attend work the following day. Both Mr Stewart and Mr Linehan raised their voices and were speaking over each other about whether the email should have been sent. Ms Henderson’s evidence, the Tribunal wrote at [29], was that Mr Linehan was fixated on the communication method which in her view displayed a “lack of judgement”.

73    Turning to [65] of the Tribunal’s reasons, Comcare did not put that [65] was just a list of perceptions, but put that there were perceptions in it.

74    In my opinion the Tribunal did not proceed by reference to whether or not the events at the meeting created a perception in the mind of Mr Stewart, whether reasonable or unreasonable in the thinking of others, as referred to in Wiegand at [31]. To the contrary, in my opinion, the Tribunal applied a qualitative test based on an objective measure of reasonableness, contrary to what the Tribunal would have done if it had, wrongly, applied Wiegand.

75    The Tribunal set out what it regarded as the relevant circumstances of the case as those circumstances were known at the time without the benefit of hindsight. The Tribunal also took into account the circumstances which gave rise to the requirement for the administrative action and the way in which the administrative action impacted upon Mr Stewart.

76    The Tribunal made findings as to the objective facts and as to what was objectively known and, inferentially, known to Mr Linehan. Mr Linehan did not give evidence before the Tribunal.

77    It is correct to say that the Tribunal referred to Mr Stewart being “further unsettled” and to his being “increasingly anxious and frustrated”, but that was in light of the objective facts, was against the background of the facts found by the Tribunal at [29], and related to the apparent and foreseeable effect of Mr Linehan’s conduct.

78    In my opinion, what the Tribunal said at [65] constituted findings of fact by it, based on its evaluation of the evidence given by Mr Stewart and by Ms Henderson. That is, the Tribunal found that, for example, Mr Stewart was observably further unsettled by the attendance of Ms Henderson at the meeting for the reasons the Tribunal gave. The Tribunal found as a fact that the meeting did not cover the matter for which it was engaged, namely a ‘handover’. The Tribunal found as a fact that Mr Linehan’s use of the word disrespectful in relation to Mr Stewart’s method of communication, by email, implied that the applicant, Mr Stewart, had breached the APS Code of Conduct.

79    I accept the submission on behalf of Mr Stewart that what is said in [65] is not merely an account of the perception formed by Mr Stewart, but is substantially an account of what was said to him, what he said to Mr Linehan and how he obviously reacted to the exchange with Mr Linehan. In the context of that interaction, and as properly described, the matters in [65] were expressed or were obvious to those who were at the meeting. They were therefore part of all the circumstances of the case, as concerning the way in which the administrative action impacted upon the employee and the circumstances in which the administrative action was implemented.

80    I therefore conclude that the misstatement by the Tribunal at [64], by reference to Wiegand at [31], in light of what went immediately before [64] and what went immediately after it, did not affect the Tribunal’s conclusion as to whether the assumed “reasonable administrative action” was not taken in a reasonable manner.

81    Because I have found that there was no error of law in this respect, I do not find it necessary to consider Comcare’s reliance on Smith v Comcare [2013] FCAFC 65; 212 FCR 335, which did not precisely concern the present question but a different question which was whether the Court, having found an error of law, could exclude the possibility that that error affected the Tribunal’s fact finding. The difference here is that the Tribunal’s analysis at [65] of its reasons is explicit and the error is either found there or it is not.

82    Contrary to Comcare’s submissions, I do not regard the Tribunal as having asked itself the question whether the administrative action could have been taken in a more reasonable manner.

83    Nor do I accept Comcare’s submission that [65] of the Tribunal’s reasons provides no actual evaluation.

84    I do not accept Comcare’s submission that the Tribunal’s approach, contrary to Martin, was dependent only on the “subjective psychological drivers of the employee’s reaction”.

85    Subject to what follows as to the possible infection of the Tribunal’s consideration of this matter by the matters considered in Question 1 in Comcare’s notice of appeal, I would answer Question 3: “No.”

86    In my opinion, the infection for which Comcare contends in this case, by the Tribunal’s erroneous reasoning as to Question 1 infecting its reasoning as to Question 3, is not made out because the Tribunal approached the issue of whether the reasonable administrative action was taken in a reasonable manner on the express assumption that the meeting on 15 January 2016 was reasonable administrative action: see [66]. I take into account that earlier, at [54], the Tribunal had said it was not necessary for it to consider the issues canvassed by Questions 2 and 3 and was addressing whether the administrative action was reasonable and taken in a reasonable manner “for completeness”. But as it made clear also at [55], the Tribunal went on to make findings on the assumption that it was wrong in its conclusion or conclusions that the meeting held on 15 January 2016 was not “administrative action”, and on the further assumption that it was “reasonable administrative action”, thus giving rise to its analysis of whether that reasonable administrative action was taken in a reasonable manner. This approach of reasoning from an assumption made in the alternative does not reveal error, at least where, as in the present context, the assumption goes merely to a question of characterisation, rather than fact. Relevantly, the reasoning of the Tribunal on the matters canvassed by Question 3 proceeded by considering whether Mr Linehan’s conduct at the meeting on 15 January 2016 – that event being assumed to bear the character of reasonable administrative action taken in respect of the applicant’s employment – was taken in a reasonable manner.

Conclusion and orders

87    For these reasons my conclusion is that the appeal should be dismissed. My provisional view is that the applicant should pay the respondent’s costs. If necessary, I will hear the parties in relation to costs.

Associate:

Dated:    21 March 2019