FEDERAL COURT OF AUSTRALIA

Dunkerley v Administrative Appeals Tribunal [2012] FCA 41

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

I. Introduction

1    This is an unfortunate case. There is no doubt that on 24 October 2007 Ms Dunkerley suffered an adjustment disorder with anxious mood which was contributed to by her employment with the Department of Education, Science and Training (‘the Department’). Nor is it in dispute that the second respondent, Comcare, has accepted liability to compensate Ms Dunkerley for this. The events giving rise to this case post-date these earlier occurrences but this history forms the inseverable backdrop to what then occurred. At its most basic Ms Dunkerley’s complaint is that she was invited to apply for a position within the Department for which she was then shortlisted and interviewed in circumstances where, according to her, she should never have been interviewed in the first place. She received feedback from the interview process and it seems possible that during it she was told that she had only been interviewed for charitable reasons (or that the word ‘charity’ or ‘charitable’ had been used). Ms Dunkerley contends that she thereupon suffered a further aggravation of her earlier condition. And, indeed, this is not in dispute. Instead, the present debate turns upon the operation of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’). Section 5A defines the expression ‘injury’ for the purposes of the Act and does so, subject to one matter, in terms which would plainly cover Ms Dunkerley’s situation. The one exception springs from the concluding words of s 5A(1) which say that the definition ‘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’. What is ‘reasonable administrative action’? Section 5A(2) provides the answer:

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.

2    In short compass, the basic issue now dividing Ms Dunkerley and Comcare is the narrow one of whether the events surrounding her interview can be properly described as ‘reasonable administrative action’ within the meaning of s 5A(2). Comcare formed the view that what had occurred could be described that way. On review, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed that conclusion.

3    It is from that determination by the Tribunal that Ms Dunkerley now appeals. Her right of appeal is conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). That right of appeal is conferred only in respect of questions of law. In Part II I set out the questions of law involved; in Part III I set out in more detail the factual circumstances of the appeal; in Part IV I deal with the questions and the submissions of the parties; and in Part V I deal with the appropriate relief.

II. The questions of law posed by the appeal

4    Ms Dunkerley proceeds on an amended notice of appeal. Although the questions posed in it do not strictly take the form of the questions of law perhaps required by s 44 it is, I think, quite clear in substance what the questions are and, in those circumstances, I proceed on the basis that proper questions within the meaning of s 44 have been posed. It was not, in any event, suggested I should take any other course. Rephrasing Ms Dunkerley’s questions slightly the four questions are as follows:

1.    whether the Tribunal failed to take into account a relevant consideration, namely, the fact that the selection process to which Ms Dunkerley was subject was afflicted by a conflict of interest;

2.    whether the Tribunal failed to take into account a relevant consideration, namely, a particular policy statement which was said to form part of the Department’s contracts of employment with its staff and which therefore had a legal status beyond being a mere policy (the Tribunal having treated it as non-binding);

3.    whether the Tribunal failed to take into account a relevant consideration, namely, the legislative framework arising from the Public Service Act 1999 (Cth) (‘the Public Service Act’); and

4.    whether the Tribunal erred in law by misconstruing the meaning of the expression ‘principles of merit, equity and procedural fairness’ when appearing in the policy to which reference has already been made.

III. The factual circumstances of the appeal

5    Apart from challenges to the legal characterisation of some of the events which did occur the facts as found by the Tribunal were not challenged in this Court; indeed, given the limitations on the nature of the appeal to this Court so much had to be so. The factual account which follows is drawn from the Tribunal’s reasons.

6    In 2007 Ms Dunkerley had been employed by the Department of Education, Science and Training. Whilst so employed she alleged that she had been bullied by her supervisor. It was accepted thereafter by Comcare that she had suffered from an adjustment disorder and that this disorder had been materially contributed to by her employment. Accordingly, in due course the Tribunal, by consent, made orders with respect to the making of compensation payments to Ms Dunkerley.

7    When the adjustment disorder first arose Ms Dunkerley had taken leave of absence. A number of doctors who were consulted believed that putting some distance between Ms Dunkerley and her then supervisor would be of considerable assistance in treating her condition. One of her doctors, a Dr George, recommended in February 2008 that she could return to work albeit not with the same supervisor. He also recommended a ‘short graduated return to work program’.

8    It is not altogether clear from the Tribunal’s reasons or, in fairness to the Tribunal, from the material which was before it, at what time or with whom Ms Dunkerley first returned to work. In late 2008, the Tribunal concluded that Ms Dunkerley had worked, under the leadership of a Mr Schwager, on a small business summit run by the Prime Minister. The preparation time permitted for this summit had been very brief. Mr Schwager had been impressed by Ms Dunkerley’s ability to work under pressure and her positive attitude. What is clear, however, is that after that on or around 22 January 2009 she commenced in an APS6 position in which it was anticipated she would work primarily on ministerial correspondence. This position was in the Industry and Small Business Policy Division in the Department. She was regarded as a happy and productive member of the division.

9    In June 2009, some months after Ms Dunkerley had commenced in her APS6 position, it became necessary within the Division to fill several EL1 positions. As it happens, Mr Schwager was appointed to chair a selection committee (‘the committee’) to fill these positions. It appears that Ms Dunkerley applied for one of the positions. In all the committee received 35 applications.

10    The relevant corporate policy framework for the selection process was provided by the Department’s Policy Statement on Recruitment, Selection and Engagement Version No.3 (dated March 2008), which I will refer to simply as ‘the policy’. There is a question to be resolved in this case as to the legal status of the policy so that for present purposes it is sufficient to note its salient features without commenting upon their correct legal characterisation. Important statements in the policy included these:

    Employment decisions are based on merit with reference to the APS Values contained in s 10(1) and 10(2) of the Public Service Act.

    Selection will be free from patronage, favouritism, or discrimination.

    The best person for the job will be selected from a field of suitable candidates.

    The selection process would be ‘based on principles of merit, equity and procedural fairness’.

11    Part 3 of the policy was entitled ‘The Selection Process’ and within it Part 3.7 dealt with ‘Assessment Procedures’. It provided relevantly that:

The following processes are available to assess the relative merits of applicants. It is important to document the process used to select a successful applicant:

    establish a short list of applicants with very strong claims to the position.

    finalise shortlist after contacting referees, those applicants remaining will be seen as being in close contention for selection to the position. (An alternative here is to have only applicants listed for interview provide referee reports).

    finalise selection by:

□    making an assessment based on application and referee input alone; and/or

□    conducting interviews; and/or

□    examining work samples; and/or

□    conducting performance tests (written and/or practical); and/or

□    other forms of appropriate assessment.

12    The first bullet point called for the establishment of a shortlist of applicants. The process contemplated that the referees of those on the shortlist would be contacted although the parenthesis made tolerably clear that the interview process could precede the checking of referees. Regardless, the committee decided to create a shortlist of 17 persons from the 35 who had originally applied and it did so without checking the referees.

13    Ms Dunkerley’s written application was not felt by the members of the committee to be of as high a quality as those proffered by the other applicants on the shortlist. Despite that, however, Mr Schwager was able to persuade the other members of the committee that she should be placed on the shortlist. He did this because of his impression of her ability to work under pressure, her commitment and her positive attitude.

14    Ms Dunkerley was offered an interview on 8 July 2009. Before she was interviewed by the committee she sat a written test.

15    Because it will be relevant to the characterisation of what occurred next it is important at this juncture to note the Tribunal’s explicit finding that Mr Schwager was altogether unaware of Ms Dunkerley’s condition. Although he had had experience of Ms Dunkerley on the Prime Minister’s small business summit, he had not been her immediate supervisor. Further, he did not know of Dr George’s recommendation for a graduated return to work. Implicit in this finding is the further conclusion that so far as Mr Schwager was concerned, Ms Dunkerley was a staff member with known positive traits and no particular health issues.

16    In any event, Ms Dunkerley did not do well on the written test and performed poorly during the interview on 8 July 2009. In consequence, she was ranked unsuitable. Her referees were not contacted.

17    It is commonplace in affairs such as these for unsuccessful candidates to be given feedback. The Tribunal found that Mr Schwager gave Ms Dunkerley her feedback on the afternoon of Friday 17 July 2009 and that it was likely to have been of about five minutes duration. The Tribunal accepted that Mr Schwager had conducted the session in a professional and polite manner. The Tribunal did not make a precise finding about the words which were used by Mr Schwager but it did find that he attempted to advise her that she had been unsuccessful, that her written application was below par, that she had presented as nervous during the interview, that she did not properly address the selection criteria and that some of her answers lacked depth. On the upside, he did convey that her responses to the questions concerning the managing of stakeholders had been sound.

18    About these matters there appears to have been little debate. The Tribunal also accepted that Mr Schwager, in the course of explaining why Ms Dunkerley had been shortlisted, quite possibly used the word ‘charity’ or ‘charitable’. The Tribunal accepted that Mr Schwager was not intending to be patronising but had instead merely been trying to convey that he had given her the benefit of the doubt because of the good qualities exhibited by her beforehand during the Prime Minister’s summit.

19    This is not, however, how Ms Dunkerley received Mr Schwager’s remarks. Following the passage of the weekend after receiving her feedback on the Friday afternoon, she sent an email to the human resources department first thing on Monday morning. It was in these terms:

I was unsuccessful in the EL1 promotion round. I was told at the post interview feedback that I was never a contender as my application was invalid. I was advised that the addressal [sic] of the selection criteria with examples not from my current duties was not acceptable. I was only allowed to participate in the interview process out of charity. I found out on Friday, but was too humiliated to email you.

I should have been told this at the outset, and offered a chance to practice my interview skills (which I would have declined on the grounds that I believe my application did not receive fair treatment, and I would achieve nothing except further embarrasment [sic] and humiliation).

I apologise for wasting your time, however, the information you gave me was very useful.

I feel destroyed, because I feel I was set up to be part of a sadistic prank.

I will be organising a session with a psychologist, and going to my doctor tomorrow to get extended sick leave. I am too intimidated to discuss any of this with my supervisor in the workplace because I just don’t understand the rules of engagement.

20    It is, more or less, from this exchange that the present case has arisen. The next day, that is Tuesday 21 July 2009, Ms Dunkerley attended the Phillip Medical Centre and obtained a medical certificate from Dr John Sanderson, presumably excusing her from work. His view was that she had suffered an adjustment disorder that was substantially contributed to by her employment. Before the Tribunal, as I have said, it was accepted that Ms Dunkerley had suffered an injury in the requisite sense; the only remaining issue was whether that admitted injury had resulted from reasonable administrative action.

IV. The submissions of Ms Dunkerley

21    One of the arguments Ms Dunkerley mustered before the Tribunal was that there had been an impermissible departure from the procedures contemplated by the policy. In particular, it was submitted that:

(a)    only candidates with strong claims to the position should be shortlisted but her application had not been of that kind: ergo, she should not have been shortlisted;

(b)    the Department had a policy of interviewing all internal candidates and this was unfair on external candidates; and

(c)    her referees should have been contacted before she was shortlisted.

22    It is difficult to integrate (b) into the present dispute – indeed, the evidence suggested there was no such policy. Regardless, each of these points the Tribunal dismissed factually. As to (a), the Tribunal noted that the policy explicitly provided for a good degree more flexibility than Ms Dunkerley’s submission entailed. At paragraph 3.8 of the policy under the heading ‘Shortlisting’ this was said: ‘The method of short listing and final assessment is a matter for each SAC [scil: selection committee] to determine’. Consequently, it was open to Mr Schwager to proceed as he did without in any way breaching the policy. The same observation disposed of (c). Having made those observations the Tribunal then made an additional observation:

In any event, the Policy Statement is no more than a policy; it has no binding legal force.

23    It is with this statement that Ms Dunkerley now takes issue. She submits, in substance, that she was denied procedural fairness by the committee’s decision to depart from the policy. She also submits that the policy formed part of her contract of employment.

24    The difficulty with this contention is that it lacks utility unless the prior determination by the Tribunal that the policy had not been breached is itself assailed. But the Tribunal specifically found that the policy included a considerable degree of flexibility. At [43] it said:

43.    To so argue is to neglect other aspects of the Policy Statement. The requirement that the procedures relating to the selection process should be based on ‘principles of merit, equity and procedural fairness’ permit a degree of latitude. Ms Dunkerley did not address the notion of ‘equity’. The meaning of that term as taken from the Macquarie Dictionary is: ‘1. the quality of being fair or impartial; fairness; impartiality; 2. that which is fair and just’.

[Footnote omitted.]

25    It expanded on the same theme at [45]:

45.    That flexibility is reinforced by the principle that the method of short listing ‘is a matter for each [selection advisory committee]’. In other words, there is a residual discretion in the selection committee that sanctions the taking into account, when short listing, of evidence of ability based on personal knowledge of a member of the panel. …

26    Without a conclusion that the policy was breached this argument lacks utility. It is by no means clear that a challenge to the Tribunal’s construction of the policy was mounted in argument before this Court; in the event that it was, however, I deal with it below at paragraph [35]. As will be seen, I have concluded the Tribunal’s construction is sound. It follows inevitably from that conclusion that the question of whether the policy was enforceable or not is moot.

27    The question in the amended notice of appeal relating to this issue was question two. The answering of this question would serve no purpose as it is moot. To the extent necessary, I would answer it ‘Question inappropriate to answer’.

28    The second matter pursued by Ms Dunkerley was the contention that Comcare bore the onus of proving that the exemption in s 5A(2) had been satisfied. This argument is not included in the amended notice of appeal and therefore ought not formally be entertained. However, apart from that, I would not have accepted it. Section 5A(2) is set out above. It does not say anything about onus of proof. In the context of administrative decision making – such as that being undertaken by the Tribunal – notions of onus of proof may often be inapposite: cf. Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 540-541 [71] per Gummow and Hayne JJ. Thus, in this case, it was for the Tribunal to consider afresh an administrative decision. The issues involved were those dictated by the legislation. In that regard, it was for the Tribunal to consider whether it was satisfied of the matter in s 5A(2) and it did so conclude. No error in that approach is disclosed.

29    The third matter raised by Ms Dunkerley was also not encompassed in the amended notice of appeal. In the broad the complaint was that Comcare had failed to behave correctly during the course of the hearing. The particular examples proffered by Ms Dunkerley were Comcare’s actions in :

(a)    failing to inform the Tribunal that the Department had breached her contract;

(b)    failing to avoid litigation where possible by requiring her to prove matters known to it to be true; and

(c)    making a Calderbank offer to her.

30    In her oral address, Ms Dunkerley sought to base these complaints upon Comcare’s status as a model litigant. Assuming all of that in her favour, however, none of this would establish error by the Tribunal. In that circumstance, I would not have upheld this ground even if it had appeared in the amended notice of appeal.

31    A related argument (also not appearing in the amended notice of appeal) was that Comcare was required to demonstrate that it had acted in good faith. Whether this be so or not the fact is that the Tribunal found that Mr Schwager had acted in good faith. As it said at [60]-[61]:

60.    On an objective basis and in summary, the Tribunal finds that the actions by Mr Schwager and the selection panel members were not a ‘sadistic prank’ as claimed by Ms Dunkerley on 20 July 2009, and that they complied sufficiently with the procedures and principles outlined in the Policy Statement. In these circumstances, the feedback was not untoward, irrational, absurd or ridiculous.

61.    Although it may have been more sensitive for Mr Schwager to have used terms other than ‘charitable’ and ‘the benefit of the doubt’ when he gave Ms Dunkerley feedback, his practice to be honest with unsuccessful candidates, and his intention to indicate that he genuinely believed from his experience of working with her that Ms Dunkerley deserved an interview, indicates he had no intention of being patronising or demeaning in his assessment. The Tribunal accepts that he was a busy manager, he was giving feedback to nine applicants who had been unsuccessful, and he had no knowledge of Ms Dunkerley’s sensitivities. On that basis, the manner in which feedback was provided to Ms Dunkerley was also not unreasonable.

32    Ms Dunkerley sought to buttress this argument by referring to cases about good faith in contractual dealings such as Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234. This reference was, however, otiose given the terms of s 5A(2). The basic problem confronting Ms Dunkerley is not the law but the Tribunal’s finding that Mr Schwager had acted in good faith.

33    Ms Dunkerley then submitted that the selection process had been afflicted by a conflict of interest (which corresponded to question one). The conflict was described in various ways. At its simplest it consisted of the fact that Mr Schwager had personal knowledge of Ms Dunkerley prior to the selection process. At a more complex level there was involved also the contention that Ms Dunkerley had been given an unfair advantage by reason of Mr Schwager’s actions.

34    The difficulty with this is that these matters do not constitute a conflict of interest. Mr Schwager had no personal interest in the matter. He had a duty to conduct the process fairly. The fact of his knowing of Ms Dunkerley’s prior achievements created no conflict between his duty and any of his own interests. Whether Ms Dunkerley obtained the position was a matter to which he was indifferent as the fact that she failed to secure the position amply bears out. Nor was he subject to any duty arising from his prior knowledge of Ms Dunkerley’s merits which might conflict with his duty to conduct the selection process in an evenhanded fashion. Even assuming, therefore, that conflicts of interest were a mandatory matter, none was present. This question should be answered ‘No’.

35    In her amended notice of appeal it was said that the Tribunal had misconstrued the expression ‘principles of merit, equity and procedural fairness’ where it appears in the policy. It is not entirely clear to me that this was pursued. The Tribunal’s treatment was at [43]-[44] in these terms:

43.    …The requirement that the procedures relating to the selection process should be based on ‘principles of merit, equity and procedural fairness’ permit a degree of latitude. Ms Dunkerley did not address the notion of ‘equity’. The meaning of that term as taken from the Macquarie Dictionary is: ‘1. the quality of being fair or impartial; fairness; impartiality; 2. that which is fair and just’.

44.    Since fairness and objectivity (that is, impartiality) are referred to separately in section 10(1)(b), it is the second of those dictionary meanings of ‘equity’ that is the most apt. For a decision to be ‘just’ invokes notions of giving a person what they deserve. To be fair and just permits the decision-maker to take into account matters other than those criteria listed as relevant to a process or a position, including personal knowledge by the members of a selection committee of an applicant’s ability.

[Footnote omitted.]

36    I detect in this no error. Question four should be answered ‘No’.

37    The last complaint pursued orally was that the Tribunal had failed to take account of the legislative framework of the Public Service Act. As the argument was advanced the point was that the Tribunal had not had regard to the Code of Conduct in s 13 of the Public Service Act or the APS values in s 11. However, these were not mandatory considerations in the sense explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. Question three should be answered ‘No’.

38    In these circumstances, no error has been shown in the approach of the Tribunal.

V. Relief

39    The application must be dismissed. Comcare did not seek costs and in those circumstances there should be no order as to costs.

Associate:

Dated:    3 February 2012