Federal Court of Australia

Moradi v Comcare [2024] FCA 812

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to this appeal.

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

REASONS FOR JUDGMENT

MCEVOY J

1    By notice of appeal dated 21 October 2022 the applicant, Ms Yasmin Moradi, appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from two decisions of the Administrative Appeals Tribunal, made on 28 September 2022. Those two decisions, made in matters 2018/4986 and 2019/4964, affirmed two decisions of the respondent, Comcare, to deny liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for psychological injuries sustained by the applicant.

2    The issue raised by the appeal concerns the manner in which the Tribunal applied the “reasonable administrative action” exception in s 5A of the SRC Act to exclude liability for the applicant’s claimed psychological ailment under s 14 of the SRC Act.

3    For the reasons that follow I have concluded that the Tribunal’s approach to determining this issue was ultimately correct. It was consistent with the text, structure and purpose of the relevant provisions of the SRC Act and with the exposition of those provisions in the Full Court of this court. No error is revealed by the grounds advanced by the applicant and the appeal should be dismissed with costs.

background

4    The applicant was an employee of the Translation Interpretation Service (TIS) within the Department of Home Affairs (at the relevant time the Department of Immigration and Border Protection) for the purposes of s 5 of the SRC Act. She had been engaged on deployments as a Farsi (Persian) interpreter for periods of various lengths and in different locations since 21 August 2012.

5    Relevantly in the present context, the applicant was engaged by the TIS for deployment to the island of Nauru, where the Department conducted a regional processing centre. The applicant’s deployment commenced on her arrival in Nauru on 17 December 2017 and was to be of eight weeks duration. The applicant was due to return to Australian on or about 8 or 9 February 2018.

6    The applicant’s engagement was subject to a Deed of Standing Offer, which included clause 6.3.6 in the following terms:

… the Department may provide the Service Provider notice of cancellation where the Service Providers Assignment is to conclude before the originally scheduled conclusion time. In such cases, the Department may provide notice to the Service Provider at any time advising of the revised time of conclusion.

7    On 12 January 2018, the applicant and four other interpreters were informed by Ms Laura Richardson, the Head of Operations, that their Nauru deployments “would be ceasing early due to the requirement to reduce interpreters of certain language groups based on operational needs at that time” (12 January meeting). The applicant was informed that her deployment would end on 14 January 2018, approximately one month ahead of the time her original deployment was due to end.

8    The decision to end the deployment of the relevant interpreters was explained in an email dated 11 January 2018 from Ms Victoria McLeod, the Operations Lead for the Department, to Ms Alison Thorne, a manager at TIS, and the affected interpreters in Nauru. This email stated:

We have reviewed our resourcing requirements for interpreters and would like to advise you of some upcoming changes.

Based on operational requirements, we are adjusting our interpreter allocation as outlined in the table below. As you can see, there is a reduced operational demand for some language groups and an increase for others.

We have determined the new allocation based on the number of incoming job requests and other operational requirements such as accommodation pressures.

We intend to maintain this allocation (30) for the foreseeable future and will request additional resources if and when required.

9    Also in evidence before the Tribunal was a later email from Ms McLeod, dated 6 November 2018, which further explained how the decision was reached to terminate the deployment of the five interpreters in Nauru prematurely:

There were a number of drivers for this change including accommodation constraints following a government of Nauru directive that all stakeholders immediately vacate RPC-1 as well as reduced demands for interpreter services in particular languages.

Before making the decision to reduce numbers by 5, the ABF Operations Team in Nauru undertook a detailed analysis of job requests and found we had more interpreters on island than were needed to service requests. On this basis, we adjusted our resourcing requirements and advised TIS accordingly.

The decisions about which interpreters would cease their deployments early were based on operational requirements (number of job requests) and we considered factors such as length of time in Nauru (i.e. those closest to their departure date would leave first), language ability (i.e. multiple languages preferred) and gender balance.

The reduced number (30) was considered more than sufficient to cover job requests and resulted in interpreters having more jobs during the day. Since this reduction, we have maintained 30 interpreters on island and this is reviewed regularly.

10    The applicant made applications to the respondent for compensation pursuant to s 14 of the SRC Act for “adjustment disorder, anxiety and depression” and “psychiatric condition, adjustment disorder, post-traumatised stress disorder (“PTSD”), anxiety and major depressive disorder” arising from her deployment to Nauru. She also sought compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act.

11    The respondent denied liability and the applicant sought review of those decisions in the Tribunal.

12    Each of the reviewable decisions was affirmed by the Tribunal. The Tribunal found that as a result of the early termination of the applicant’s deployment to Nauru on 12 January 2018, she had developed an adjustment disorder: mixed anxiety and a depressive reaction. The Tribunal’s decision was based on the applicant’s reaction to the early termination of her deployment to Nauru on 12 January 2018, and not anything else (see Tribunal’s reasons at [57]-[65]). This was despite the applicant making a separate claim for compensation with respect to a psychiatric condition with symptoms first noticed on 18 December 2017 said to have been caused by other adverse circumstances during her deployment.

The Tribunal’s reasoning

13    It was not in dispute before the Tribunal that:

(a)    the applicant was an “employee” of the Department at the time that she sustained the psychological ailment for which she sought compensation;

(b)    the applicant suffered from a psychological ailment (which the Tribunal determined to be an adjustment disorder as described above); and

(c)    the applicant’s psychological ailment was contributed to, to a significant degree, by her employment with the Department and, therefore, she had suffered from a “disease” (as defined in s 5B of the SRC Act).

14    The key issue for the Tribunal was thus whether the applicant’s “disease” was excluded from the definition of “injury” in s 5A of the SRC Act because it was suffered as a result of reasonable administrative action taken in a reasonable manner in the course of her employment.

15    In relation to this issue the Tribunal concluded:

(a)    that the applicant’s ailment was suffered “as a result of” the early termination of her deployment (which was communicated to her during the 12 January meeting);

(b)    the early termination of the applicant’s deployment was “administrative action”;

(c)    the 12 January meeting at which the applicant was informed that her deployment had been prematurely terminated was also “administrative action”;

(d)    the early termination of the applicant’s deployment was “reasonable” administrative action;

(e)    the early termination of the applicant's deployment was reasonable administrative action “undertaken in a reasonable manner”; and

(f)    as such, the exclusion provided for in s 5A(1) of the SRC Act applied and, in consequence, the applicant had not suffered an “injury” and was not entitled to compensation under s 14 of the SRC Act.

16    The applicant’s appeal only concerns the Tribunal’s findings with respect to the Tribunal’s satisfaction that the decision to terminate her deployment early, as communicated at the 12 January meeting, was “administrative action”. The appeal does not concern the way in which the Tribunal applied the “reasonable” and “undertaken in a reasonable manner” limbs of the exception in s 5A(1) of the SRC Act. Nor does the applicant appeal the Tribunal’s decision to affirm Comcare’s decision to deny the applicant compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act.

the statutory regime and relevant principles

17    Section 14(1) of the SRC Act renders Comcare “liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.

18    As the respondent submits, the SRC Act gives “pivotal importance” to the concept of “an injury” and “… the centrality of ‘an injury’ to the scheme [is what] Comcare’s liability to compensate depends [upon]”: Canute v Comcare (2006) 226 CLR 535 at 539 [8] and 542 [15] (Gummow A-CJ, Kirby, Callinan, Heydon and Crennan JJ) and Comcare v Lofts (2013) 217 FCR 220 at 222 [9] (Mortimer J). “Injury” is not used in a “global sense” and the structure of the SRC Act assumes that an employee may suffer more than one “injury”: Canute at 540 [10]. Accordingly, the question of whether an employee suffers an “injury” is a “threshold issue for application of the SRC Act”: Comcare v Drinkwater (2018) 260 FCR 150 at 151 [2] (Kenny, Flick and Perry JJ).

19    The word “injury” is defined in s 5A of the SRC Act, as follows:

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.

(Emphasis added.)

20    Clearly, the examples of “reasonable administrative action” given in s 5A(2) of the SRC Act are no more than examples. They do not define exhaustively the scope of the exclusionary provision in s 5A(1), and cannot confine the meaning of that phrase: Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at 472-473 [26] (Gray J); 583 [62] (Rares and Tracey JJ); Drinkwater at 167 [76]. It may be accepted that whether or not there is administrative action within the meaning of s 5A(1) will be highly dependent on the particular factual circumstances in which the action is taken: Drinkwater at 165 [67].

21    Action that is “administrative” is action of a kind that may be taken with respect to the employment of a particular employee: Reeve at 473 [31] (Gray J). Action that is “administrative” in character “… is not action with respect to the duties that an employee is employed to carry out”, “the task or job entrusted to a person”: Reeve at 481 [52] (Rares and Tracey JJ). Nor is administrative action “the regulation of the normal incidences of a person’s employment”: Long v Comcare [2016] FCA 737 at [24] (Tracey J). Rather, it is “action with respect to the employee as employee and his or her employment relationship with the employer”: Reeve at 473 [30] (Gray J). That is, “[i]t is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”: Reeve at 474 [32] (Gray J). The action must be “… directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment”: Reeve at 482 [57] (Rares and Tracey JJ); see also National Australia Bank Ltd v KRDV (2012) 204 FCR 436 at 445 [49] (Cowdroy J).

22    The respondent submits, and it may be accepted, that examples of “administrative action” include: a decision by an employer not to allow an employee to return to work because of a medical opinion that the employee is not fit for work and to require the employee to provide medical evidence that he or she is fit: Drenth v Comcare 128 ALD 1 at 6 [20]-[23] (Rares, McKerracher and Murphy JJ); attempts by an employer to improve an employee’s standard of performance by checking and providing specific feedback about the employee’s work: Long at [29]; and transferring an employee to a different post or position from that previously held by the employee in the employer’s employ: Drinkwater at 165-166 [70].

23    It is also the case that a kind of action that is to be distinguished from “administrative action” is “operational action”. That is to say, action that relates to the activities or business of the institution in which the employee is employed. Examples of “operational action” may include an instruction to perform work at a particular location, to drive on a particular route, to perform particular duties: Reeve at 473-474 [31] (Gray J); or to give directions to an employee as to how and when he or she is to perform their job: Reeve at 486 [74] (Rares and Tracey JJ).

24    The phrase “in respect of” used in s 5A(1) of the SRC Act is properly to be regarded as a connecting phrase that requires there to be “a relationship” between the administrative action taken and the employee’s employment: Reeve at 473 [28] (Gray J) and 485 [69] (Rares and Tracey JJ). As Rares and Tracey JJ observed in Reeve at 483 [60], use of that connecting phrase indicates that:

… the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be ‘in respect of’ something that exists – the person’s employment.

As the respondent submits, that is demonstrated by the non-exhaustive examples provided for in s 5A(2)(a)-(f) of the SRC Act which are all matters that are in respect of, but apart from, ordinary duties or tasks of the employee’s employment or the job itself: Reeve at 484 [63] (Rares and Tracey JJ).

the appeal

25    For the purposes of this appeal the applicant advances the following questions of law arising from the Tribunal’s decision:

(1)    Did the Tribunal fail to apply the correct statutory test when finding that the action taken by the employer on 12 January 2018 prematurely to terminate the deployment of the applicant (the 12 January 2018 action) was administrative action taken in respect of the applicant’s employment?

(2)    Did the Tribunal fail to apply the correct statutory test in finding that the 12 January 2018 action was taken in connection with the applicant’s “failure … to retain a benefit, in connection with … her employment”, as provided by s 5A(2)(f) of the SRC Act?

26    The applicant submits that these questions should be answered in the affirmative. She says that the Tribunal’s misunderstanding of the statutory regime vitiates its reasoning in that she was denied the review for which s 64 of the SRC Act and ss 25(1) and 43(1) of the AAT Act provide. The applicant seeks to have the decision set aside and to have the matter remitted to the Tribunal to be determined according to law.

Ground One

27    The applicant’s first ground of appeal is expressed as follows:

1.    The Tribunal found that the circumstances of the Applicant’s injury constituted “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. In making that finding, the Tribunal erred in law by failing to apply the correct statutory test.

(a)    The exclusion from the concept of “injury” in s 5A(1):

(i)    applies where an injury is suffered as a result of “reasonable administrative action taken … in respect of the employee’s employment”;

(ii)    does not apply where an injury is suffered as a result of action that is operational in the sense that the action:

(A)    relates to the activities or business of the institution in which the employee is employed;

(B)    is not directed specifically to the employee’s employment; or

(C)    is not directed specifically to the employee.

(b)    The Tribunal erred in:

(i)    failing to consider the significance of:

(A)    the uncontradicted evidence that the 12 January 2018 action, prematurely to terminate the deployments of five (out of thirty five) unspecified employee interpreters, was “based on operational requirements”: Tribunal’s reasons, [85], [86], [87]; and

(B)    its finding that “the decision to prematurely terminate the interpreters’ deployments” was driven by “operational requirements”: Tribunal’s reasons, [88];

(ii)    failing to consider the significance of the fact that the termination of the Applicant’s deployment was not action “in respect of the [Applicant’s] employment” in that it was not a decision specific to the Applicant; and

(iii)    failing to identify any reason why the Applicant was selected as one of the five employee interpreters, whose deployment was to be prematurely terminated.

(Emphasis added.)

28    By this ground the applicant submits that the Tribunal failed to give proper consideration to the uncontradicted evidence, and its own finding, that the decision to terminate prematurely the deployment of the five interpreters was:

(a)    based on operational requirements (in particular, a reduction in the demand for interpreters on Nauru and accommodation pressures) and was not administrative action taken in respect of the relationship between the applicant in her capacity as employee, and the Department, in its capacity as her employer: cf Reeve at 474 [33] (Gray J);

(b)    a matter of general administration and management, even if it affected her employment: Reeve at 474 [33] (Gray J);

(c)    not directed specifically to her employment, but affected her because it was connected to her employment: Reeve at 482 [57] (Rares and Tracey JJ);

(d)    not capable of being characterised as “disciplinary action or deciding to deal with [an] employee as an individual in respect of … her employment”: Reeve at 486 [73] (Rares and Tracey JJ); and

(e)    not “a decision about the employment relationship” but rather was “some feature of … her workplace or environment”: Drenth at 6 [22].

29    The applicant submits that the Tribunal failed to consider why she was selected as one of the five interpreters whose deployment was to be terminated prematurely. She notes that no explanation was advanced in Ms McLeod’s 6 November 2018 email recording “the decision to reduce numbers by 5”, as to the basis for her selection. The applicant contends that without interrogating that reason, the Tribunal could not resolve the essential question of whether the decision, as a result of which her deployment was prematurely terminated:

(a)    was “administrative action taken … in respect of [her] employment” – that is, directed specifically to her employment: cf Reeve at 482 [57] (Rares and Tracey JJ);

(b)    dealt with her as an individual in respect of her employment: cf Reeve at 486 [73] (Rares and Tracey JJ); or

(c)    was a decision about the employment relationship between her and the Department itself: cf Drenth at 6 [22] (Rares, McKerracher and Murphy JJ).

30    Reading the Tribunal’s reasons as a whole, I do not accept the applicant’s characterisation of the underlying facts which the Tribunal considered. As the respondent submits, the applicant’s submissions conflate what are actually two separate decisions, or actions, that occurred sequentially:

(a)    first, the decision made by the applicant’s superiors to reduce the overall number of interpreters working on Nauru (the First Action); and

(b)    secondly, and consequent upon and in order to give effect to the First Action, the decision to select the applicant (and four other interpreters) to have their deployments terminated prematurely (the Second Action).

31    In other words, properly understood, there was a generally applicable “operational” or policy decision made (the First Action), and then subsequent “administrative” action taken with respect to the applicant’s employment relationship (the Second Action). The First Action created a need for there to be an action with respect to individual employment relationships (that is to say, the Second Action).

32    It is relevant to note that in Hart v Comcare (2005) 145 FCR 29 (Branson, Conti and Allsop JJ), the Full Court considered situations where there are multiple employment related factors for the purposes of the definition of injury or disease as was then to be found in s 4(1) of the SRC Act. When there are multiple causes of injury arising “out of, or in the course of” an employee’s employment, if any one of those causes constitutes reasonable administrative action then the exclusion, now in s 5A of the Act, will operate and the employee will become wholly disentitled to compensation in respect of that injury: see Hart at 33 [21]-[23], cited in Reeve at 472 [24] (Gray J).

33    In the present circumstances the First Action was communicated by Ms McLeod’s email of 11 January 2018 (see above at [8]) which explained the decision to bring the deployment of the five interpreters to an early conclusion. The Second Action was explained by Ms McLeod’s email of 6 November 2018 (see above at [9]), which considered the personal attributes of the interpreters in determining who would finish their deployment early.

34    A similar distinction as between these different decisions or actions is made by Mr Jason Lynn, an employee of the Department, in his statement dated 15 March 2021 which was before the Tribunal. Mr Lynn explained how different considerations were referrable to each of the decisions:

7.    I am aware that a decision was made by the Department in early January 2018 to adjust the allocation of TIS interpreters at Nauru. This decision was a consequence of the Government of Nauru directive, that took into consideration the:

a.    reduced scope for accredited interpreters being required, based on transferee needs or stakeholder requests for interpreter assistance;

b.    reduction in available accommodation, and

c.    the Department continually required to review resources available to achieve value for money.

8.    The allocation adjustment resulted in five interpreters (approximately 14%) being returned to Australia on 14 January 2018. This followed the return of a number of departmental staff who returned in late 2017. In selecting which interpreters were to depart, the demand for the relevant language group, the originally scheduled departure dates, accommodation factors, and gender balance were all considered.

(Emphasis added.)

35    As the respondent submits and I accept, differentiation between operation of a general policy or decision and implementation of that policy or decision with respect to an individual employee is orthodox application of the exception in s 5A of the SRC Act. In Drinkwater, for example, the Full Court recognised (at 166 [73]) that a departmental decision to implement the relevant mobility policy did not:

… alter the fact that the administrative action to transfer [Mr Drinkwater] was made in respect of his employment … it will frequently be the case that administrative action taken in respect of a particular employee’s employment will be taken under, or in furtherance of, a policy that the employer has determined is applicable to all or some of the employees in its employ.

36    In Drinkwater, as in the present circumstances, the earlier departmental decision to implement the mobility policy was not the relevant action because it did not give rise to the disorder for which compensation was sought: at 166 [72]. That is, the policy was not in and of itself action “in respect of” any particular employee’s employment: see Drinkwater at 166 [72]-[73]. Like the decision to transfer Mr Drinkwater to a new post, a decision to bring the applicant’s deployment to an end is properly to be regarded as an action directed specifically to her as an employee as opposed to one affecting her because it was an ordinary feature of her work, workplace or environment, or otherwise connected to her employment: see Drinkwater at 161-162 [54], citing Reeve at 482 [57] and 483 [60] (Rares and Tracey JJ). The applicant’s submission that the Full Court’s reasoning in Drinkwater is not applicable in the present circumstances is not compelling. The fact that Mr Drinkwater was being transferred, rather than terminated, does not undermine the force of the Full Court’s observation in its application to the present circumstances.

37    Similarly in the present case, properly understood the Tribunal found that only the Second Action was “administrative action” (Tribunal’s reasons at [67]-[72], [76]). The Tribunal was entitled to make that finding because determining that the applicant’s deployment would be terminated was “directed to” and “about” the applicant’s employment relationship: Reeve at 483 [60] (Rares and Tracey JJ); Drenth at 6 [22] (as cited by the Tribunal in its reasons at [69]-[70]); see also Reeve at 474 [3] (Gray J). It was not action “forming part of the everyday duties or tasks” of the applicant: Reeve at 483 [60] (Rares and Tracey JJ). The Second Action was not an instruction to the applicant about performing work at a particular location (see Reeve at 473-474 [31] (Gray J)) because the Second Action had the effect of ending the employment relationship itself. Nor was the Second Action “part and parcel” of the applicant’s employment: Reeve at 483 [61] (Rares and Tracey JJ). Rather, the Second Action was “in respect of” the applicant’s employment relationship itself with the Department. It was specific to her work as a Persian interpreter: see Reeve at 485 [69] (Rares and Tracey JJ); and it comprised the taking of a specific step under the applicant’s Deed of Standing Offer, which is analogous to the contract of employment referred to in Reeve at 486 [74] (Rares and Tracey JJ). I accept that the Second Action was quintessentially “administrative action”.

38    As the respondent submits, the applicant’s ground 1(b)(i) is directed to identifying error in the First Action. However, for the reasons which I have outlined, it is clear that the Tribunal found that the Second Action, not the First Action, was the relevant “administrative action” and that it had a proper basis for doing so. In these circumstances ground 1(b)(i) does not disclose any vitiating error in the Tribunal’s decision.

39    Insofar as the applicant’s ground 1(b)(ii) is concerned, that ground also arises from the applicant’s conflation of the First Action with the Second Action in the manner which has been described. The Second Action, which was the “administrative action” relied on by the Tribunal, was directed specifically to the applicant. As the Tribunal explained in its reasons at [67]-[72], it was her individual deployment that was terminated. Ground 1(b)(ii) does not disclose any vitiating error in the Tribunal’s decision either.

40    Turning finally to the applicant’s ground 1(b)(iii), I accept the respondent’s submission that it was not necessary for the Tribunal, in considering whether the administrative action was taken in respect of the applicant’s employment, to identify any reason why the applicant was selected to be one of the interpreters whose deployment was to be terminated prematurely. As the respondent submits, that the applicant’s deployment was terminated, a decision which was apparently informed by the language she interpreted, the length of time she had been on Nauru, and her gender, was what was determinative of the “administrative action” being in respect of her employment. I do not accept the applicant’s submission that in not identifying any reason why the applicant was selected to have her deployment prematurely terminated the Tribunal failed to engage with the question that was integral to the exclusion in s 5A(1) of the SRC Act – was that selection “administrative … in respect of [her] employment”. It was open to the Tribunal to conclude that the Second Action was administrative having regard to the evidence that it was made by reference to a range of considerations. Ground 1(b)(iii) discloses no vitiating error.

41    Insofar as the applicant submits that the examples of “reasonable administrative action” in s 5A(2) of the SRC Act illustrate the general focus of the concept of “administrative action”, and reinforce that the focus of the exclusion is to ensure that legitimate human resource management actions, undertaken reasonably, do not give rise to eligibility for compensation, the following may be said. First, there is nothing in the terms of s 5A of the SRC Act or the consideration of the meaning of that section in the decided cases that could be taken to confine its operation to circumstances where disciplinary action is being undertaken or some other employment benefit is not obtained. The section is plainly directed to the taking of a virtually unlimited range of reasonable administrative action taken in a reasonable manner in respect of an employee’s employment: Reeve at 472-473 [26] (Gray J); 483-484 [62], 485-486 [71] and 486 [73] (Rares and Tracey JJ); Drinkwater at 167 [76].

42    Secondly, the applicant’s reliance on the fact that the 12 January meeting was not a performance review or some form of disciplinary action, and that it had nothing to do with promotion, reclassification, or an employment benefit, is misplaced. It was well open to the Tribunal to accept, in all the circumstances, that what occurred at the 12 January meeting was reasonable administrative action taken in respect of the applicant’s employment. The applicant’s submission that the fact that the employer had the power to discontinue the applicant’s deployment prematurely does not render the action taken “administrative action” in the relevant sense does not advance the analysis. When the Department’s actions are properly understood (as described above), it can readily be accepted that the Second Action is susceptible of classification as reasonable administrative action in respect of the applicant’s employment.

43    It follows that I do not accept the applicant’s submission that the evidence before the Tribunal permits only the conclusion that there was a single decision to terminate the deployment of five interpreters because of the shift in demand for interpreter services which was driven by “operational requirements”. It was open to the Tribunal to analyse the evidence in the way that it did.

Ground Two

44    The applicant’s second ground of appeal is expressed as follows:

2.    The Tribunal erred in failing to apply the correct statutory test in finding that the 12 January 2018 action was a failure of the Applicant to retain a “benefit … in connection with … her employment” as provided by s 5A(2)(f) of the SRC Act.

(a)    The Tribunal characterised the 12 January 2018 action as a failure to retain a “benefit … in connection with … [the Applicant’s] employment” without identifying any particular benefit that the Applicant failed to retain in “connection with” her employment.

(b)    The 12 January 2018 action concerned no particular benefit in connection with the Applicant’s employment but the termination of the particular engagement.

(c)    The engagement was not a “benefit in connection with” employment but the employment itself and hence the wrong statutory test was applied.

45    In support of this ground the applicant notes that s 5A(2) of the SRC Act offers a non-exhaustive list of actions that are included within what is meant by “reasonable administrative action” for the purposes of s 5A(1) – including, at s 5A(2)(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.

46    The applicant notes also that the Tribunal invoked s 5A(2)(f) when it made what she characterises as the “bare” finding that the meeting on 12 January 2018 was “action done in connection with [her] failure to retain a benefit in connection with her employment”: Tribunal’s reasons at [73].

47    The applicant submits that in making this finding the Tribunal offered no elaboration of the nature of the benefit that she had failed to retain. She says that if the Tribunal had in mind the deployment to Nauru (the only thing that the action in question denied the applicant), that could not be characterised as a benefit in connection with her employment. The applicant contends that the deployment to Nauru was the activity that she was contracted to provide, pursuant to the Deed. She says that it was the substance of her employment, not a benefit in connection with her employment.

48    In answer to this ground of appeal the respondent submits that the relevant administrative action finding in paragraph [71] of the Tribunal’s reasons, that the early termination of the applicant’s deployment was “administrative action”, was a sufficient finding for the purposes of s 5A(1) of the SRC Act. The respondent submits, consistently with its notice of contention, that there is no need for relevant administrative action to fall within any of the examples in s 5A(2).

49    The respondent characterises the Tribunal’s finding at [73] that the 12 January meeting itself fell within the example of “administrative action” provided for in s 5A(2)(f) as “additional, and unnecessary”. This finding is said to be without error, although of little consequence, because the 12 January meeting was “in connection with” the applicant’s failure to retain the benefit of her deployment, in the sense considered by Heerey J in Trewin v Comcare (1998) 84 FCR 171 at 176-177. This is said to be because it was at the 12 January meeting that the applicant was informed that her deployment was being terminated. Thus the respondent submits that no error is disclosed by ground two.

50    In all the circumstances I accept the respondent’s submission that the administrative action finding made by the Tribunal in paragraph [71] of its reasons was sufficient for the purposes of s 5A(1) of the SRC Act. Contrary to the applicant’s submissions, I do not consider that the Tribunal’s finding in paragraph [73] is to be regarded as having been “integral” to the Tribunal’s reasoning. In my assessment it is more in the nature of a supplementary finding which, as the respondent submits, was probably unnecessary. I would not, however, characterise this additional finding as erroneous having regard to the observations of Heerey J in Trewin at 176-177 and Cooper J in Golds v Comcare [1999] FCA 1481 at [41]-[42] as to the nature of a benefit in the present statutory context. The applicant’s submissions at [7.3]-[7.4] of her reply do not affect my conclusion in this regard.

51    It follows, therefore, that I reject the suggestion that the Tribunal confused the substance of the applicant’s employment with a benefit in connection with her employment such as to reveal a vitiating error of law.

Conclusion

52    The applicant’s grounds of appeal have not been made out. There is no relevant error in the Tribunal’s decision and her questions of law should be answered in the negative. The application will be dismissed with costs.

Associate:

Dated:    24 July 2024