WorkCover Corporation of South Australia v Summers (1995) 65 SASR 243, applied.

On 26 September 1997, the Workers Rehabilitation and Compensation Tribunal made an order that the respondent was entitled to terminate weekly payments and thereafter was not liable to pay workers compensation in respect of the appellant's injury (being a disease) alleged in his claim for compensation dated 24 September 1996. On this appeal, the appellant claims that the order is tainted with error of law.

The appellant had been employed as a teacher at the respondent school since 1988. On 9 November 1994, he was appointed Director of Studies at the respondent's Barrack Street campus for the years 1995 and 1996. This was the second senior position at this campus. Mrs Allardice was the person in charge of the Barrack Street campus and answerable to the school Principal. As Director of Studies, the appellant was responsible to Mrs Allardice for the proper discharge of his teaching duties and a range of non-teaching duties, including, in particular, development, leadership and evaluation of educational programs. With the establishment of the Guilford Young College, the appellant's duties at the Barrack Street campus diminished. 1996 was the last year the respondent conducted its school at Barrack Street and in that year there were only about ninety Year 10 students in attendance.

Brother Barclay was appointed the Principal of the respondent's school in 1995. The Tribunal found that shortly after his appointment, Brother Barclay noted entries in the appellant's file to the effect that in 1994 his predecessor had some concerns about the appellant, viz, possible consumption of alcohol while on duty; below standard teaching performance; and an absence from a two day seminar. However, Brother Barclay did nothing, other than note that these concerns had been the subject of meetings and discussions between the appellant, his predecessor and others.

However, on 6 March 1996, Brother Barclay did have reason to speak to the appellant about his teaching load. It appears that one of the appellant's duties was the allocation of teaching duties to other members of staff. Noting that the student population in 1996 was less than it had been the previous year, and that the appellant's duties had diminished due to the absence of a need for formal planning at Barrack Street for 1997, Brother Barclay considered that the appellant had allocated himself a teaching load that was too small and unfair when compared with the workload of other teachers. By a letter dated 13 March 1996, Brother Barclay wrote to the appellant and instructed him to increase his teaching hours and to re-arrange the work experience program that was to take place in Term III. It appears that the appellant was not happy with Brother Barclay's proposals. He sought assistance from his union, the Tasmanian Catholic Education Employees' Association. However, it seems that the differences between the appellant and Brother Barclay over the former's teaching duties eventually dissolved.

Three months later, (early June 1996) a member of staff came to Brother Barclay with a list of fourteen matters of concern with respect to the appellant. The concerns were wide ranging and included allegations of drinking whilst on an outdoor activities excursion, unauthorised absences, use of the school computer to access pornography off the Internet in the staff room, a lack of interest in the students and a failure to become involved in co-curricular activities. At about the same time as these concerns were made known, Brother Barclay became aware that Mrs Allardice and another female member of staff had complained about the appellant accessing pornography off the Internet from a school computer in the staff room. In result, there was a meeting between the appellant and Brother Barclay. It appears from a letter written by the latter to the former, to record what was discussed at the meeting, that the only issue debated was the access to pornography. The issue of alleged failure to become involved in co-curricular activities was resolved by the teacher with the concerns speaking to the appellant and the latter agreeing to take students who wished to play golf. Brother Barclay's letter written after the meeting, records that the appellant admitted that he had accessed pornography on one occasion whilst in the staff room but claimed that this access was accidental. The letter went on to note that at the meeting the appellant raised a concern he had that students had ready access to pornography off the Internet. Very shortly after the meeting between the appellant and Brother Barclay, the appellant addressed a staff meeting. He told the staff that he had been working on ways and means of preventing students from accessing inappropriate material off the Internet, but as from that moment, he was abandoning that project.

Two days later, Mrs Allardice spoke to Brother Barclay about the appellant. She said that she was concerned about the appellant transferring students from his class to another class without proper consultation with the students concerned, their parents or the teacher into whose class the students were being transferred. Mrs Allardice noted that the result of these transfers was a reduction in the appellant's teaching load. All of these events caused Brother Barclay to write to the appellant on 1 July 1996 in the following terms (formal parts omitted):

"I wish to meet with you at 1.25 this afternoon in the Campus Director's Office at Barrack Street in relation to a number of significant issues.

At present, it is my intention to discuss with you:

- Use of the Barrack Street staffroom computer. In particular:

- The issue of students transferring from your Deductive Reasoning Class to other classes.

I advise you to give serious consideration to having with you a person of your own choosing (this could be a Union representative).

I have asked Mrs Roz Allardice to be present as my own representative."

The meeting was held as arranged. Present were the appellant, the assistant executive officer of the appellant's union, Brother Barclay and Mrs Allardice. The meeting lasted over an hour. Minutes were taken by Mrs Allardice and run to eight typed pages. At this meeting, Brother Barclay put to the appellant that he had accessed pornography from the school's staff room computer on more than one occasion, that he had been titillated by the images and had sought to draw other staff members' attention to them. The appellant admitted that he had accessed pornography on more than one occasion, but claimed that he had done so as part of his work to see how students could be prevented from gaining access to the same material. He denied the other allegations. After some discussion, Brother Barclay said that he believed that the appellant had been accessing offensive material for titillation and enjoyment. The appellant denied this. Brother Barclay told him that such access to pornography "constituted serious misconduct". Next, Brother Barclay produced a fax message addressed to the appellant from a Mr Yule. The tenor of the fax indicated to Brother Barclay that the appellant had been trying to breach copyright with respect to some software used by the school. The appellant denied this. There followed a discussion about the transfer of students from the appellant's Deductive Reasoning Class. At the end of the discussion, Brother Barclay expressed concern about these transfers and the absence of appropriate consultation with respect to them. Brother Barclay told the appellant that absence of consultation over the transfer of students out of his class meant that the appellant was able to reduce his teaching load without his superiors being aware of it and he considered this to be a serious matter, having regard to the discussion they had had earlier in the year about the appellant's teaching load. The following then appears in the minutes:

"Br Barclay said that the above all fell into the category of unsatisfactory performance, whereas the comments related to accessing offensive material on the Internet fell into the area of misconduct.

He explained that unsatisfactory performance could allow him to place Adrian on 'due process' whereas misconduct allowed for a possible formal warning, and could include dismissal. He said that he did not wish to rush in and would like the opportunity for some breathing space and a period of reflection before he followed any course of action.

He would like to meet tomorrow (Tuesday July 2) at 11.15 am as it was important to think and reflect about the means of action. Whilst Br Barclay did not wish to cause unnecessary delay and anxiety he felt it was important to give full consideration to all the above. He promised to give an outcome at tomorrow's meeting."

At the meeting the next day, the appellant's union representative disputed the accuracy of the minutes and expressed concern that Brother Barclay appeared to have accepted the word of others over that of the appellant. Brother Barclay said at some length that, in his opinion, the pornography matter was serious and amounted to misconduct and that the student transfer matter was unacceptable conduct. It appears from the minutes of this meeting that there was some acrimony expressed and that the appellant claimed he had been denied justice and was the victim of "a shoddy smear campaign".

The outcome of all this was that the appellant was placed on due process. Brother Barclay told the appellant that his contact person during this period was to be Mrs Allardice, that he would review the appellant's performance during the due process period and consider his position at the end of the second term. Brother Barclay warned the appellant "that potential consequences of further incidents could include another investigation process, a second warning or dismissal".

Tendered in evidence in the Tribunal were the guidelines laid down by the Australian Catholic Commission for Industrial Relations to be followed in the case of termination of employment for misconduct and in the case of termination of employment for unsatisfactory performance. Brother Barclay acted within the terms of these guidelines.

Three days later, the appellant wrote a long letter to Brother Barclay complaining about the ability and competence of his immediate superior, Mrs Allardice, and her unsuitability as his contact person during the due process period. The letter also referred to the allegations put to the appellant by Brother Barclay at the meeting three days earlier and alleged that Mrs Allardice had been guilty of misrepresentations and inaccuracies. The letter was headed "WITHOUT PREJUDICE". Brother Barclay's written response was to the effect that he understood the expression "without prejudice" to mean that the letter had no weight in any subsequent discussion. Brother Barclay wrote that if the appellant wished to make serious allegations against another member of staff that he felt he could substantiate, he should give proper written notice of them and Brother Barclay would fully investigate them. There followed some more acrimonious and disputative correspondence.

However, it appears that over the next month matters settled somewhat, and on 16 August 1996, there was a relatively friendly meeting between Brother Barclay and the appellant without others being present. The purpose of the meeting was to review the appellant's progress during his period on due process. Brother Barclay expressed general satisfaction with the defendant's work, said he did not think any further progress meetings were necessary prior to the final meeting at the end of the second term, and expressed the hope that the due process period would conclude satisfactorily.

However, over the next two or three weeks, the following matters were reported to Brother Barclay:

* the appellant had been absent without explanation from two important combined staff meetings;

* the appellant had failed to involve himself in an extra-curricula activity as he had said he would;

* the appellant had not completed the preparations he was supposed to have completed for the students who were to take part in the forthcoming work experience program, being the program Brother Barclay told the appellant to take on when he altered his teaching load in March that year.

As the end of second term was approaching, Brother Barclay wrote to the appellant on 4 September 1996 in the following terms (formal parts omitted):

"I wish to meet with you at 11.30 am tomorrow, 5th September, in the Principal's Office on the Austins Ferry Campus.

At present, it is my intention to discuss with you:

- Your absence from combined staff meetings this term;

- The Work Experience Programme at Barrack Street;

- Your performance while on due process, and other issues related to this matter.

I advise you to give serious consideration to having with you a person of your own choosing (this could be a Union representative)."

Brother Barclay said that when he wrote the letter he had formed no judgment about the first three matters. He listed them so he could discuss them with the appellant, as they were matters to which his attention had been drawn. At the hearing in the Tribunal, evidence was given by other members of the respondent's staff from which it could well be concluded that the appellant was in default with respect to all the matters raised by Brother Barclay in September 1996.

In his evidence, the appellant said that when he was first placed on due process in July he "couldn't believe it was happening to [him] and when it started to sink in [he] felt pretty terrible". He said that he started to experience difficulty concentrating and sleeping. With respect to the other members of the teaching staff, the appellant said he felt "let down, terribly betrayed" and "bewildered at the whole situation". The appellant said that when he received the letter of 4 September 1996, he broke down. He said, "its contents indicated that the matters were not going to stop and obviously the knife was in, let's twist it". On receipt of the letter, the appellant contacted his Union representative and then consulted his general practitioner. In result, the appellant was given a certificate that he was unfit for work and has not worked since that day.

The appellant made a claim for compensation. The claim was supported by a medical certificate which stated, in effect, that the appellant was suffering from stress and hypertension due to an overload of work at school. The respondent did not dispute the claim as provided by the Workers Rehabilitation and Compensation Act 1988, s81A and weekly payments were made. Subsequently, the respondent invoked the provisions of the Act, s81A(5) and, by application to the Tribunal, disputed that the appellant was entitled to the payment of any compensation at all. After a contested hearing, the order against which this appeal is brought, was made. In the Tribunal, the respondent did not dispute:

* that the appellant had suffered an injury which is a disease arising out of and in the course of his employment and to which his employment contributed to a substantial degree; and

The respondent's case in the Tribunal was that it was not liable to pay compensation by virtue of the Act, s25(1A) which provides:

"(1A) Compensation is not payable under this Act in respect of a disease which arises substantially from --

(a) reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or

(b) a decision of an employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with a worker's employment; or

(c) reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment; or

(d) the failure of an employer to take action of a type referred to in paragraph (a), (b) or (c) in relation to a worker in connection with the worker's employment if there are reasonable grounds for not taking that action; or

(e) reasonable action under this Act taken in a reasonable manner affecting a worker."

In its reasons for making the order, the Tribunal referred to the evidence of Dr Sale that the appellant suffered from an adjustment disorder with anxiety symptoms and Dr Sale's opinion that the symptoms from this disorder were brought on by the appellant's receipt of the letter from Brother Barclay dated 4 September 1996. In his report, Dr Sale recounted the history he had been given and said:

"It thus appears to me that Mr Abrahams' difficulties did not arise until he faced the prospect of disciplinary action. It might be that his earlier problems and transgressions may in themselves have indicated another health problem, or anxiety over a health problem.

As noted above, I believe that the letter from his Principal indicating that he was to attend a meeting is the key event in causing Mr Abrahams' problems."

* the appellant's health first became affected by the institution of disciplinary proceedings commencing with a meeting on 1 July 1996;

* these proceedings constituted "a challenge to the [appellant's] ongoing employment in particular and his career in teaching generally";

* the receipt of the letter dated 4 September 1996 "was the key incident that initiated his actual illness".

With respect to the receipt of this letter, the Tribunal said:

"Although the receipt of the letter of 4 September was apparently the initiating event for the suffering of the worker's illness, I do not accept that it can be treated in isolation as the cause of the worker's illness given that it was merely the culmination of the disciplinary action that was underway."

"In this regard it is necessary to treat the letter in two components, the first is the giving of the notice of meeting in respect of the outcome of the period of due process and in this regard it was clearly part of the disciplinary proceedings which included that procedure of due process. The second component is the notice given by the letter of the three other matters that were to be discussed at that meeting. I will deal with that second component separately. In respect of the notice concerning the meeting as to due process, the letter must be seen in the context of action that was being taken in that it formed a part of a scheme underway as between the employer and the worker to 'discipline or counsel'. In so far as the letter is giving notice of meeting in respect of the period of due process, it was clearly an aspect or integral part of that disciplinary action."

The Tribunal then found that the disciplinary action was reasonable in the circumstances and taken in a reasonable manner. No challenge is made to those findings.

With respect to what the Tribunal described as the second component of the letter dated 4 September 1996, the Tribunal found that it was reasonable for Brother Barclay to raise for discussion in the manner he did the first three matters raised in the letter. No challenge is made to that finding. The Tribunal then found that:

"Giving notice as to these other topics and meeting to discuss same was either part of 'counselling' or alternatively was administrative action." [Original emphasis]

The appellant alleges that in making that finding there was an error of law. The alleged error is that the Tribunal misdirected itself with respect to the appropriate law. The grounds relied upon in the notice of appeal are:

"1 The Tribunal failed to determine whether the cause or causes of the worker's injury (disease) were substantial as required by Section 25 (1A) Workers Rehabilitation & Compensation Act 1988.

2 The Tribunal found that the cause or causes constituted 'action taken' within the terms of Section 25 (1A) (a) and (c) by:-

* Wrongly interpreting 'counsel' in paragraph (a).

* Finding that the cause or causes amounted to counselling in paragraph (a).

* Finding the cause or causes amounted to 'administrative action' in paragraph (c)."

The Tribunal concluded its careful and detailed reasons as follows:

"In summary therefore I am satisfied that the worker commenced suffering symptoms and was emotionally affected by the disciplinary proceedings commenced in July 1996. The illness which may have been developing became incapacitating in September 1996 and by application of Section 3(5) was suffered on 5 September 1996. The cause of that illness was those disciplinary proceedings and in particular the letter from the Principal received by the worker on 4 September 1996. For the reasons set out herein I am satisfied that these causative events satisfy the requirements of Section 25(1A)(a) and (c) and accordingly compensation is not payable."

As I understand the argument put on behalf of the appellant, it is that:

* the Tribunal found as a fact that receipt of the letter of 4 September 1996 was the precipitating event or cause of the appellant's symptoms;

* the Tribunal found that the letter had two components, only one of which amounted to reasonable action taken in a reasonable manner by an employer to discipline an employee (s25(1A)(a));

* there were thus two causes for the onset of symptoms and subs(1A) only operates to exculpate the respondent if one or more of the causes specified in the subsection was the substantial cause;

* the Tribunal erred in failing to make a finding as to which of the two causes was the substantial cause, (ground 1);

* in addition, no Tribunal acting reasonably and properly instructed as to the law, could have found that the other cause amounted to reasonable action to counsel or reasonable administrative action within the meaning of subs(1A)(a) or (c), (ground 2).

At the outset, it seems quite clear to me that the Tribunal's finding of fact was that there was a single cause for the onset of the appellant's disabling symptoms. It was, as the Tribunal said, "the receipt of the letter of 4 September". Subsection (1A) concerns diseases which arise substantially from any one or more of the causes specified in pars(a) - (e) inclusive. The finding of the Tribunal that the cause of the disabling symptoms of the appellant's disease was the receipt of the letter renders unnecessary any inquiry about what was the substantial cause of the appellant's disease, for that finding ipso facto, makes the receipt of the letter the substantial cause of the appellant's disease. Ground 1 must therefore fail. The only remaining question for the Tribunal was whether that cause fell within any one or more of the matters set forth (relevantly to the present case) in subs(1A)(a) or (c).

On looking at the breadth of the language used in s25(1A), it is difficult to escape the notion that an employer will only be liable to pay compensation for injury being a disease when the employer has acted unreasonably. This notion, of course, ushers into the Workers Rehabilitation and Compensation Act the concept of fault liability, a concept that is anathema to the principles of the workers compensation law. Any such notion must be firmly rejected in the absence of clear words from the legislature to support it.

Section 25(1A) was introduced into the Act by the Workers Rehabilitation and Compensation Reform Act 1995. The provenance of the subsection is almost certainly the Workers Rehabilitation and Compensation Act 1986 (SA), s30(2)(a) as enacted at the time of the enactment of the Tasmanian Reform Act. The words of the South Australian subsection are, with one significant exception, almost identical to those in the Tasmanian subsection, pars(a) - (c). The significant exception is that the South Australian subsection was confined in its operation to "a disability that consists of an illness or disorder of the mind caused by stress". The Tasmanian subsection applies to all injuries that are a disease within the meaning of the Act. The Hansard reported debates that attended the passage of the Reform Act seem to indicate that the legislature believed that the operation of subs(1A) was confined to stress claims, but it plainly is not. One can easily imagine the difficulties that may well arise out of the wide operation of subs(1A) in cases where the injury being a disease is physiological and not psychological, but that is for another day. The present matter is a stress claim. The question is whether error of law attended the Tribunal's finding of fact that the appellant's receipt of the letter was not only reasonable disciplinary action, but was also counselling and/or administrative action within the meaning of pars(a) and (c) respectively.

WorkCover Corporation of South Australia v Summers (1995) 65 SASR 243 was a decision of the Full Court of South Australia and concerned a worker who had suffered stress arising out of her employment. The finding of the Tribunal was that the stress or anxiety disorder was not attributable to any specific incident in the course of her employment, nor to any specific or identifiable course of conduct by the employer. The anxiety disorder in that case was found to have been the cumulative effect of a number of aspects of the employment. The worker was not able to cope with her work. The issue for the Full Court was whether or not, in those circumstances, it was open to the Tribunal to find that the worker's stress arose wholly or predominantly [substantially] from administrative action taken by the employer in connection with the employment and, of course, whether it was reasonable action taken in a reasonable manner. Doyle CJ (with whose reasons for judgment the other members of the Court agreed) said at 247 that there was nothing in the expression "administrative action" as enacted to suggest that the words should not be given their ordinary meaning, viz, a meaning which would include a course of conduct or general instruction by the employer or a general approach by an employer to a particular job or particular situation.

Doyle CJ rejected a submission that administrative action embraced every instruction given and every action taken by an employer, express or implied, and which related to the worker's duties. He did so because:

* Such an approach would require identification and examination of every action and instruction that might have contributed to the stress and a consideration of whether each was reasonable and reasonably taken. He said it was unlikely that Parliament intended this result.

* Such an approach would operate to defeat most stress claims because most stress claims related back to employer instruction and action, and a worker would not succeed unless such instructions and actions were not reasonable or not reasonably taken.

Doyle CJ acknowledged that by the enactment of s30(2)(a) the Parliament intended to restrict stress claims, but did not think it intended to include stress that arose simply from an inability to cope with work if the employer's instructions and actions in the workplace were reasonable and reasonably taken. He said, at 248, "it is not easy to say just what Parliament had in mind when enacting subpar (iii)". I echo his Honour's sentiments with respect to the Tasmanian subsection. Doyle CJ went on to say:

"In my opinion it is not necessary in this case to attempt to define the scope of the subparagraph. It is sufficient to dispose of this case to say that if a worker shows that she suffers an illness or disorder of the mind caused by stress, and that stress is caused simply by an inability to cope with the requirements of her work, by an inability to cope with the job itself, then the worker has shown that her stress does not arise from administrative action, whatever that expression might mean. I do not think it matters whether or not the worker was given a series of express instructions to perform her work. My conclusion is that stress caused by an inability to cope with the job itself, to put things simply, is not stress which arises wholly or predominantly from administrative action taken by the employer in connection with the worker's employment."

His Honour went on to explain that he had reached that conclusion basically because he did not consider Parliament intended to make such a significant change to the Act which it would have made if administrative action had that meaning. He added a further reason:

"... I consider that the expression 'administrative action' is probably intended to apply to decisions or actions by the employer which are in some way related to the workings or functioning of the workplace, rather than to the actual task performed by the worker. I recognise, of course, that there will be a relationship between the two things."

His Honour left to another day the question of identifying, with any precision, the action or conduct on the part of an employer that will constitute administrative action for the purposes of the paragraph. For the purposes of determining this appeal, it also not necessary to attempt an exhaustive definition of what is administrative action within the meaning of the Act, s25(1A). Perhaps it is best to let the definition emerge in the traditional common law way, the decision in each case being confined to its own facts.

The Tribunal referred to the judgment of Doyle CJ in Summer's case and said that the first three matters mentioned in the letter of 4 September 1996 addressed issues of a general nature and were not confined simply to the tasks that the appellant was obliged to perform in the discharge of his contract of employment. The Tribunal said that these issues were the general requirement for teachers to attend combined staff meetings and be involved in co-curricular activities. I can detect no error of law in the Tribunal's reasoning in this respect. Indeed, the gravamen of the complaint with respect to these issues was that there was a general requirement, no doubt for the good administration of the school, that all teachers must attend these staff meetings and take part in co-curricular activities. The appellant's alleged transgressions cut across the due administration of the whole of staff at the school. For the appellant, Mr McTaggart submitted that with respect to the first three matters raised in the letter of 5 September 1996, Brother Barclay was doing no more than seeking answers to questions that had been raised. I think this approach is narrow and unrealistic. The appellant was still in a period of due process. The matters raised had been raised before in one form or another. The appellant's conduct in this respect affected the other teachers at the school, the student body and the management of the school in general. It is not right to categorise the first three matters in Brother Barcly's letter as no more than questions in the sense that the appellant's answers to them would necessarily be the end of the matter. Seeking answers to those questions was the first step in what may have been several steps, depending on the appellant's answers, in a wide ranging course of administrative action. The matters raised were not concerned with the minutiae of the day to day conduct of the appellant's job as a teacher. The appellant's performance with respect to co-curricular activities and work experience involved other members of the staff and the management of the school generally, for the evidence made it plain that any shortcomings on the part of the appellant in these respects increased the burden of work on other members of staff and were an abrogation of the responsibility that was imposed on the appellant by reason of his position in the hierarchy of the school.

In Summer the worker was just doing her job. The instructions she was given and the action taken were confined to the ordinary work that the worker was employed to do. Others were not involved. It was, as has been said, a case where the worker just could not cope with her work. This case is quite different, for the instruction given and the action taken was given and taken with respect to conduct or alleged conduct of the appellant that impinged upon the student body generally, their parents and all the other members of staff. It cannot be said that no Tribunal, acting reasonably and properly instructed as to the law, could have found that sending the letter (insofar as it did not constitute reasonable action taken in a reasonable manner to discipline the appellant) was reasonable administrative action taken in a reasonable manner. This conclusion makes it unnecessary to consider whether or not the finding that the receipt of the letter was in part counselling of the appellant within the meaning of the Act, s25(1A).