Safety, Rehabilitation and Compensation Act 1988 ss 5A, 14

Beasley and Comcare [2012] AATA 411

Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Hart v Comcare [2005] FCAFC 16

Radulovic and Comcare [2010] AATA 777

Silk and Comcare [2012] AATA 638

1. Lucie Ferguson worked as a Customer Service Specialist for the Commonwealth Bank of Australia (the respondent) from January 2006 until she resigned in July 2011. She claims compensation for Major Depressive Disorder which she says developed as a result of bullying and harassment at work.
2. On 23 May 2011, the respondent determined it was not liable to compensate Ms Ferguson. It accepted that she was suffering from Major Depressive Disorder and that events at work over the course of 2010 had contributed to a significant degree to her condition, but determined it was not a compensable injury because it was the result of reasonable administrative action taken in a reasonable manner in respect of her employment.

1. By s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) the respondent is liable to compensate an employee for an injury suffered by the employee if the injury results in incapacity for work.
2. Injury in the Act 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: s 5A(1)
3. Disease in the Act means:
   • (a) an ailment suffered by an employee; or
   • (b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee: s 5B(1).

1. By s 5A(1), injury 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: s 5A(1).
2. By s 5A(2), reasonable administrative action includes but is not limited to:
   • (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 employees employment;
   • (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employees 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, the classification, transfer or benefit, or to retain the benefit, in connection with his or her employment.

1. In December 2010, Ms Ferguson lodged a claim for compensation for "anxiety and depression due to bullying and harassment" by her branch manager, Jennifer Hoppenbrouwer.
2. Ms Hoppenbrouwer was appointed to the respondent's Gosford Branch in December 2009and was Ms Ferguson's supervisor from that date. Ms Hoppenbrouwer gave evidence, which we accept, that her former branch had performed well and she was asked to manage the Gosford branch which was regarded as under-performing; she did not apply for the position.
3. Ms Ferguson was on leave when Ms Hoppenbrouwer started work at the Gosford branch. She returned from leave on 11 January 2010. She asserts that Ms Hoppenbrouwer was "on her back" every day from their first meeting on her first day back. She claims Ms Hoppenbrouwer's manner was arrogant and belittling and that she consistently failed, or refused, to recognise and value her work. The relationship deteriorated until Ms Ferguson left work in December 2010. She did not return. She resigned in July 2011.

1. In her claim form, Ms Ferguson identified 16 July 2010 as the date of her injury but it is clear that her claim concerns events over the course of her employment from 11 January 2010. Medical reports show that, when she saw her general practitioner, Dr Lawrence Ransom, on 18 March 2010, she told him she was being harassed by a superior at work; a WorkCover certificate issued in December 2010 identifies 11 January 2010 as the date of injury; and, in January 2011, Dr Christopher Bench, psychiatrist, noted "symptoms dating back at least twelve months".
2. Ms Ferguson's claims centre on the following events in 2010 in particular:
   • (i) a meeting with Ms Hoppenbrouwer on 11 January;
   • (ii) a meeting with Ms Hoppenbrouwer on 12 March;
   • (iii) a meeting with Ms Hoppenbrouwer on 14 May;
   • (iv) a meeting with Susan Hodgson concerning communications from customers in mid-July;
   • (v) discussions with Ms Hoppenbrouwer in August about leave arrangements;
   • (vi) a discussion with Ms Hoppenbrouwer following a staff meeting on 10 November.

1. We have to determine whether Ms Ferguson's Major Depressive Disorder was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If so, she will not have suffered a compensable injury.

1. Besides Ms Ferguson, the following persons from the respondent's Gosford branch gave oral evidence before the Tribunal:
   • Ms Hoppenbrouwer;
   • Daniel Kelly, Deputy Branch Manager at the relevant time;
   • Kaylene Stilgoe, Customer Service Manager at the relevant time; and
   • Kellee Gibbs, Customer Service Specialist, at the relevant time.
2. Susan Hodgson, who was the relieving manager at the Gosford branch on two occasions in 2010, provided a sworn statement but was not required for cross-examination. Donald Intine, Area Manager for the Central Coast and Newcastle at the relevant time, also provided a sworn statement. Ill-health prevented him from giving oral evidence.
3. Also before the Tribunal were documents including medical reports and clinical notes, Ms Ferguson's Performance Planning and Review documents from previous years, correspondence between the respondent's managers and Ms Ferguson, and contemporaneous diary notes by witnesses.

1. In respect of an injury, the standard form asks a claimant:

Q.8 Have you ever had a similar symptom, injury or illness, work-related or otherwise?

Q.9 Have you ever received treatment for a similar injury or illness?

1. Ms Ferguson ticked "No" to each question. Reports from Dr Christopher Bench and Dr Andrew McClure, psychiatrists to whom she was referred for assessment, recorded that she "denied any prior psychiatric contacts, admissions or treatment" (Dr Bench) and she had "no past psychiatric history suggestive of psychological disorder, or referrals for treatment of same" (Dr McClure). She also told an investigator whom the respondent brought in to investigate her complaint of bullying and harassment that she had no history of psychological or psychiatric problems before the joined the bank in 2006.
2. In contrast, medical records show that Ms Ferguson attended Ettalong Medical Centre in September 2000 complaining of symptoms including that she was "very down" and "crying all the time". In 2001, she again attended Ettalong Medical Centre, concerned that she had "flown into an uncontrollable rage" over a tenancy matter; she was prescribed Valium which she apparently did not like and stopped taking a short time later. In February 2004 she attended Wyong Medical Centre complaining that she felt depressed and irritable, and again in July 2005 for symptoms including depressed mood and loss of self-esteem.
3. Medical notes obtained under summons show that, in November 2005, Ms Ferguson saw Dr Ransom complaining that she was having "trouble coping". He referred her to a psychiatrist, Dr David Butler. Dr Ransom noted in his referral that she had been prescribed Valium by another doctor which she did not like taking. Contrary to Ms Ferguson's oral evidence that she saw Dr Butler only once, records show she saw him on 1, 2 and 13 December 2005.
4. Ms Ferguson does not dispute the medical records but she said she did not relate any previous symptoms to those she was experiencing in 2010 when she completed her claim form. Moreover, she said, none of the previous occasions was related to her work. In fact, Dr Ransom's records show that she saw him in November 2005 specifically in relation to her previous employment and her feeling that her then employer was trying to undermine her. Dr Butler's report dated 28 November 2005 shows she told him she had resigned from her previous employment because of how she was being treated by her co-workers. Ms Ferguson did not dispute either report.
5. It is not hard to understand that a person might not recall each occasion when she saw her doctor, or the symptoms she complained of on any particular occasion. It is plausible that a person might not relate present symptoms to those experienced in the past. However, it is difficult to see how Ms Ferguson could fail to recall that she had previously seen a psychiatrist several times specifically in relation to an employment matter which was apparently not dissimilar to her present claim.
6. The respondent does not assert, and we do not find, that Ms Ferguson made a wilful and false representation in connection with her employment when completing her claim form (such that her claim would be excluded by 7(7) of the SRC Act). We are satisfied that she gave her evidence truthfully as best as she could. However, it is clear that her memory is at best unreliable. Moreover, by her own evidence, as well as medical evidence, her view of persons and events is strongly influenced by her own perceptions.
7. For the most part, there is little dispute about the facts. Where there is any dispute, for example as to the sequence of events, whether particular statements were made, or how Ms Ferguson reacted to being spoken to, we prefer the evidence of other witnesses to that of Ms Ferguson.
8. The witnesses for the respondent gave credible and consistent evidence. We have no reason to doubt their accounts. Ms Hoppenbrouwer in particular impressed us as a truthful witness and a capable manager.

1. On 11 January 2010, Ms Ferguson returned from three weeks leave to find that Ms Hoppenbrouwer had been appointed the manager of the Gosford branch. They had a "one-on-one" meeting that day to discuss a range of matters including Ms Ferguson's "minimum daily goals" and "key performance indicators" and what plans she would need to put in place to achieve them. They also discussed her own and the branch's approach to customers, and "sales and service minimum standards".
2. According to Ms Ferguson, Ms Hoppenbrouwer was "in her face" from the start. She did not ask about her holidays, or anything about herself but instead launched directly into a discussion of her work performance, referring to statistics which indicated Ms Ferguson was not meeting performance expectations.
3. Ms Ferguson claims Ms Hoppenbrouwer said she would be required to achieve 100% of her target within two weeks. Ms Ferguson gave evidence that she did not agree with how the statistics were compiled but she was not bothered by Ms Hoppenbrouwer's demand because she knew she could achieve that target. However, she thought Ms Hoppenbrouwer was unfairly critical, that she overlooked her previous positive performance reviews, and that she put her in the same category as poor performers; she "was belittling me the whole time".
4. Ms Hoppenbrouwer gave evidence that she had been asked by the respondent's managers to talk to all staff about their own, and the branch's, performance by 8 January. She had already completed her discussions with other staff when Ms Ferguson returned from leave. She therefore met with Ms Ferguson on the afternoon of her first day back.
5. According to Ms Hoppenbrouwer, the meeting lasted about 40 minutes. She says, and Ms Ferguson does not dispute, that Ms Hoppenbrouwer said she was sorry no other manager had spoken to her about her performance and she was looking at ways to "address the gaps". She says Ms Ferguson resisted all her efforts, and her body language, tone of voice and attitude were negative. Ms Hoppenbrouwer says she has managed more than 300 staff over nearly ten years and has "never come across such negative attitude and behaviour".
6. As we understand from Ms Ferguson's previous performance reviews and even her statistics in January 2010, there was no suggestion that her performance was seriously lacking. We accept Ms Hoppenbrouwer's evidence that she did not suggest it was, only that it needed improvement in order to meet certain targets. According to Ms Hoppenbrouwer however, Ms Ferguson considered herself a consistently high performer who did not need assistance and she resisted her efforts to discuss her performance. She denies telling Ms Ferguson she had to achieve 100% of target within two weeks and says it would be unreasonable to do so, and she was looking to achieve that by the end of the quarter.
7. In cross-examination, Ms Ferguson agreed that, if Ms Hoppenbrouwer had been directed by her area manager to undertake a one-on-one meeting with all staff about their performances shown by the "key performance indicator statistics" that it was "absolutely" reasonable that she do so and said it was "part of her day-to-day management". She agreed it was not unreasonable to have that discussion on her first day back and said "I was welcoming it. I was hoping that she would have a meeting with me". She agreed that Ms Hoppenbrouwer did not raise her voice or abuse her during their meeting. Nevertheless, she considered her manner rude and belittling, especially because Ms Hoppenbrouwer did not know her. In fact, they both worked several Saturday morning rosters together in a nearby branch during 2009.
8. According to Ms Ferguson, from that first day, Ms Hoppenbrouwer was "on her back" every day.

1. On 12 March 2010, Ms Hoppenbrouwer and Ms Ferguson had another "one-on-one meeting". According to Ms Hoppenbrouwer's notes made at the time, she raised four matters with Ms Ferguson, each of which had been the subject of complaint by other staff: that she would be late for work on the front counter because she would get caught up with clients in her office; that she was completing sales at the front counter when it had been made clear that all "sales" (opening accounts, writing personal loans and so on) were to be done in an office; that there had been "push back" from her when asked to do maintenance; and that she was very moody and abrupt with staff.
2. According to Ms Hoppenbrouwer, Ms Ferguson resisted her attempts to discuss the matters she raised and resisted her offers of help. For example, when Ms Ferguson told her she was unhappy that her "studio" was close to a secure door and others expected her to get up and down to let them in and out, Ms Hoppenbrouwer offered to move her but Ms Ferguson declined. Giving evidence, Ms Ferguson said she did so because, even if she moved, others still would not open the door and she would only have to walk further to do it.
3. Ms Ferguson gave evidence that she felt at this meeting that an incident at work some years previously was being repeated and she "could not believe it was happening all over again". It is not necessary to go into details of that incident other than to say that certain allegations were made against Ms Ferguson. However, nothing in what Ms Hoppenbrouwer raised on 12 March, or the manner in which she raised it, suggests any basis for Ms Ferguson's perception.
4. In cross-examination, Ms Ferguson agreed it is "absolutely" a manager's responsibility to raise complaints of that nature with the person concerned. She did not dispute that Ms Hoppenbrouwer was calm and professional throughout the meeting. However, she objected to the fact that Ms Hoppenbrouwer would not tell her who had made the complaints, and she did not like her "arrogant" manner. She agreed she was moody around other staff but said she felt Ms Hoppenbrouwer was always "on her back" for being too moody or too loud, and she no longer knew how she was expected to behave.
5. Although Ms Ferguson says she was not told until after this meeting that sales were not to be conducted at the front counter, we prefer Ms Hoppenbrouwer's evidence that she had previously reminded staff including Ms Ferguson about this on a number of occasions during regular morning meetings.
6. During, or shortly after, this meeting, Ms Ferguson asked Ms Hoppenbrouwer to put what they had discussed in writing so she could seek legal advice before responding. Ms Hoppenbrouwer informed Simone Robertson, who was the Branch Support Manager at the time. Ms Robertson came to talk to Ms Ferguson but she did not want to talk to her.
7. According to Ms Ferguson, when she got home that night, she was "distraught" and "inconsolable" and kept repeating she had done nothing wrong. She started punching walls and kicked a hole in a fence, and she could not believe "it was happening all over again".

1. On 16 March, Ms Ferguson met with Ms Robertson and Mr Intine. According to a written statement by Ms Robertson, she and Mr Intine called the meeting after Ms Hoppenbrouwer reported that Ms Ferguson had become distressed at their meeting on 12 March. She and Mr Intine talked to her about what Ms Hoppenbrouwer was trying to do and their expectations of the managers.
2. Giving evidence, Ms Ferguson agreed that Ms Robertson and Mr Intine told her at this meeting that she had to take responsibility for her actions and when dealing with other team members. However, she disputed Ms Robertson's written statement that she was not receptive to what they said and that she blamed Ms Hoppenbrouwer or other team members for what had occurred.
3. Ms Robertson did not give oral evidence but the only real dispute Ms Ferguson has with her written statement is with her observation that Ms Ferguson was not receptive and blamed others. In light of all the evidence we heard, and having had the opportunity to observe Ms Ferguson, we think it more probable than not that Ms Robertson's observation was correct.
4. According to Ms Ferguson, she told Ms Robertson and Mr Intine that she did not want one-on-one meetings and wanted staff meetings, where matters could be raised openly. She told them Ms Hoppenbrouwer was not allowing her to move forward from the incident some years previously.
5. On 18 March she saw Dr Ransom who certified her unfit for work. On 19 March, Mr Intine called a staff meeting. Ms Ferguson was off work but came in for the meeting at which Mr Intine talked about communication and team work generally.
6. Before going in to the meeting, Ms Ferguson gave Ms Hoppenbrouwer a letter advising she was withdrawing from a work-related course she was undertaking. She had been selected on the recommendation of her previous manager but she felt aggrieved that Ms Hoppenbrouwer did not tell her she had been selected and she learned about it from another staff member. She claims Ms Hoppenbrouwer made her feel guilty each time she left the office and she could not cope with her "constantly making [me] feel it was [my] fault for letting the team down and being away from the office, leaving everyone else to cope". There is nothing to suggest any basis for Ms Ferguson's perception.
7. Over the weekend of 21 and 22 March, Ms Ferguson had what she describes as a nervous breakdown. She says it was "a build-up" and she "just wasn't coping". Her doctor certified her unfit for work from 22 to 24 March. Also around this time she had planned leave for her son's wedding. Two days before the wedding, her nephew died. She was also unwell with a chest infection. This was evidently a very difficult period for her. She extended her leave and returned to work on 6 April.

1. On 14 May, Ms Ferguson and Ms Hoppenbrouwer had a "one-on-one" meeting in preparation for Ms Ferguson's half-yearly performance review.
2. According to Ms Hoppenbrouwer, she started the meeting by explaining to Ms Ferguson this was to be the first of two meetings leading up to the half-yearly performance review so that she would understand what development she needed before that review. She gave Ms Ferguson positive feedback about her performance then asked if there were any "roadblocks" to her achieving 100% of her target. At this point, she says, Ms Ferguson "stood to her feet, slammed the papers on the table that she was holding and said she didn't want to continue this conversation without another person present as there were things that she needed to discuss". Ms Hoppenbrouwer persuaded her to sit down and they continued their discussion. Ms Ferguson denies acting as Ms Hoppenbrouwer describes.
3. Ms Ferguson conceded in cross-examination that Ms Hoppenbrouwer gave her positive feedback at this meeting, suggested areas of improvement and said she would give her opportunities to develop her career. She agreed she apologised when Ms Ferguson talked to her about an occasion when her behaviour was loud and - in Ms Ferguson's words - ugly. She agreed that the tone of their meeting was "OK" but she maintained nevertheless that Ms Hoppenbrouwer's manner was belittling and arrogant.

1. Around this time Ms Hoppenbrouwer went overseas on five weeks leave. On 16 July, Susan Hodgson, the acting manager, spoke to Ms Ferguson about a complaint from a customer. On 17 July, Ms Hodgson spoke to her about another customer complaint. Ms Ferguson's evidence is that neither was in fact a complaint and both were quickly fixed to the customers' satisfaction.
2. In her written statement, Ms Hodgson describes both matters as "customer complaints" and it seems that is what they were. However, other than as an example of Ms Ferguson's inability or unwillingness to accept what she perceives as criticism, nothing turns on this.
3. According to Ms Ferguson, Ms Hodgson was very good about both matters and did not belittle her. She could not explain why she was later found crying on both days other than that she broke down and "just gave up". She conceded in cross-examination that neither matter had anything to do with Ms Hoppenbrouwer who was on leave at the time, but she nevertheless maintained they were indirectly to do with her because she had not fully briefed staff about various systems matters before she went on leave, and that led to her mistakes.

Discussions with Ms Hoppenbrouwer in August about leave arrangements

1. While Ms Hoppenbrouwer was overseas on leave, Ms Ferguson's husband had to go into hospital. He was in hospital for longer than expected and Ms Ferguson had to arrange additional leave. She discussed her leave with Ms Hodgson who said she could not take carer's leave while her husband was in hospital (because she was not the one caring for him) and she would have to take some other form of leave.
2. Although there was no suggestion she could not take leave, Ms Ferguson says she was frightened about how Ms Hoppenbrouwer would respond to a request for leave. On 24 July, she saw Stephen Whyte, a psychologist, to "build better management skills" for Ms Hoppenbrouwer's return. She saw Mr Whyte on one or more occasions subsequently.
3. On 3 August, Ms Hoppenbrouwer's first day back, Ms Ferguson discussed her leave arrangements with her. According to Ms Ferguson, Ms Hoppenbrouwer did not care what had happened to her husband; she did not ask after him and simply said she could not have carer's leave while he was in hospital.
4. Ms Hoppenbrouwer concedes she was pressed for time on her first day back, that she kept the conversation short and did not ask about Ms Ferguson's husband. The next day she sat down with Ms Ferguson. She apologised and said she understood her leave had been sorted out. She gave Ms Ferguson additional leave and later asked several times if she needed more time off.
5. In cross-examination, Ms Ferguson agreed that she thanked Ms Hoppenbrouwer for her apology. She agreed the arrangement for her leave was "perfectly acceptable". She agreed Ms Hoppenbrouwer at no time said she could not have leave, and the only question was how it was to be arranged. She conceded that Ms Hodgson had already told her she would not be able to use carer's leave while her husband was in hospital. Notwithstanding, she maintains that whereas Ms Hodgson's approach was compassionate, Ms Hoppenbrouwer's was unreasonable, and every day after that was "a struggle".

1. Following the meetings on 3 and 4 August, Ms Ferguson made an appointment to see Mr Intine to tell him "everything that had been going on". On 18 August, she met with Mr Intine and Ms Robertson. Kellee Gibbs was present as her support person. They discussed a range of matters including some of what had been happening in Ms Ferguson's life outside work as well as her claim that Ms Hoppenbrouwer was bullying her.
2. On 20 August, Ms Ferguson met with Ms Robertson. They discussed whether Ms Robertson would contact Mr Whyte about Ms Ferguson but, after initially agreeing she could, Ms Ferguson said she did not want Ms Robertson to talk to him.
3. Ms Hoppenbrouwer worked in another office throughout September and Ms Hodgson acted in her position. Ms Ferguson describes September as "a wonderful month". Ms Hoppenbrouwer returned in the last week of October.

1. On 10 November, Ms Hoppenbrouwer convened a regular staff meeting to discuss a range of matters. Ms Gibbs was present and relayed a message from managers about checking loan applications. In response to something Ms Gibbs said, Ms Ferguson said to her words to the effect "I am just being facetious so just lighten up".
2. According to Ms Ferguson, her comment was "just a throwaway line". According to Ms Gibbs, she was stunned by the comment, but not offended, and she decided against making an issue of it.
3. After the meeting, Ms Hoppenbrouwer spoke with Ms Stilgoe, who was at the meeting, about Ms Ferguson's comment. They agreed it was not appropriate and that Ms Hoppenbrouwer should speak to her about it. Both gave evidence, which we accept, that whether Ms Gibbs was offended by the remark was beside the point because, in their view, Ms Ferguson's comment offended the respondent's Your Opinion Counts policy which aims to make all staff feel valued and able to speak up. Ms Hoppenbrouwer also spoke to some other staff about their comments during the meeting (unrelated to Ms Ferguson's).
4. Ms Hoppenbrouwer spoke to Ms Ferguson and Ms Gibbs together at about 9.30am before the branch opened for the day. It is common ground that Ms Gibbs said she was not offended by the comment and the meeting ended with Ms Ferguson saying to Ms Hoppenbrouwer words to the effect "Are you happy now? There was no issue before and now there is one".
5. Giving evidence, Ms Ferguson agreed that Ms Hoppenbrouwer did not raise her voice at all during this meeting and that she was calm and reasonable. She agreed it was not unreasonable for her to raise genuine concerns about something she had said during the staff meeting. However, she says, she should have done so without a witness present; "it could have been done privately, behind closed doors and certainly not right on opening time".
6. After this meeting, Ms Ferguson claims, she went looking for Ms Hoppenbrouwer to tell her she had to go home. When she could not find her, she spoke to Ms Stilgoe who said she was needed at work and could not go home. Ms Stilgoe, who was some seven months pregnant at the time, agrees she became upset during this conversation and they both raised their voices. It is common ground that Ms Ferguson said Ms Hoppenbrouwer was "a nasty vindictive bitch". Each alleges the other said "fucked" or "fucking" during their conversation; each denies using that word. Mr Kelly's evidence (below) is that Ms Ferguson told him she had used that word.
7. The altercation between Ms Ferguson and Ms Stilgoe could be overheard by customers, and Ms Gibbs decided she should telephone Mr Kelly, who was at another branch. He gave evidence that she told him Ms Ferguson was very loud, very upset and apparently not rational. He drove to the Gosford office and spoke with Ms Ferguson. He said he was sending her home for her own, and the team's, wellbeing. He said words to the effect that Ms Ferguson should think about her future at the bank.
8. Ms Ferguson maintains that Mr Kelly's statement about her future made her feel "she had been fired". However, she agreed in cross-examination that she told him she was concerned she could be seen as abandoning her position if she went home, that he reassured her that was not so, and that he told her she remained on full pay. Nevertheless, she insists her perception was that she had been fired.

1. On 24 November, Mr Kelly met with Ms Ferguson and union representatives. By letter dated 25 November, he confirmed their discussion. He set out what had occurred on 10 November. He confirmed that Ms Ferguson had acknowledged she "used inappropriate language and also comments to the affect [sic] of 'this is fucked' and 'this is just Jenny doing it again she is a vindictive bitch'". He advised that team members had said they no longer felt safe working with her because her "loud and very aggressive outbursts" were affecting them and customers and he outlined their other complaints about her.
2. Mr Kelly offered Ms Ferguson the opportunity to respond to his letter prior to meeting to discuss the matter further.
3. Ms Ferguson responded by email on 30 November. She disputed parts of Mr Kelly's letter and acknowledged others. She thanked Mr Kelly for being "the only one who showed common sense" on 10 November. She suggested a transfer to another branch would be helpful. She maintained that everything that had occurred was the result of Ms Hoppenbrouwer's "psychological bullying and harassment".
4. On 2 December, Ms Robertson and Mr Kelly met with Ms Ferguson and a union representative. On 7 December 2010, Ms Robertson wrote to Ms Ferguson confirming their discussion and issuing a "formal reprimand" in respect to her "unacceptable behaviour" and said, should it continue, the Bank would "seriously have to consider terminating your employment". She advised that, at her request and effective immediately, Ms Ferguson would be transferred to another branch.
5. On 16 December, Ms Ferguson sent a lengthy letter to Ms Robertson. She "totally refuted" Ms Robertson's assessment of her behaviour and repeated her allegations of bullying and harassment by Ms Hoppenbrouwer. She asked that the words "formal reprimand" and the "threat of termination" be removed from Ms Robertson's letter.
6. By letter dated 23 December, Ms Robertson declined Ms Ferguson's request and advised she could seek review of the matter by the respondent's internal review processes. There is no evidence that Ms Ferguson took up this suggestion.
7. Ms Ferguson was on leave over the Christmas period. On 12 January 2011 she attended on Dr Bench for assessment. She says that appointment distressed her and she has not returned to work since.

WERE THE EVENTS COMPLAINED OF ADMINISTRATIVE ACTION TAKEN IN RESPECT OF MS FERGUSON'S EMPLOYMENT?

1. It is not necessary to consider each event complained of in detail, and the respondent does not rely on each as excluding Ms Ferguson's claim. It is sufficient to consider in particular the meetings on 11 January, 12 March and 14 May and the events of 10 November.
2. For Ms Ferguson it is contended that none of the events relied on by the respondent constituted administrative action for the purposes of the SRC Act because, on each occasion in question when Ms Hoppenbrouwer spoke to her, she was simply giving "feedback" about her work practices, her dealings with other staff or how to perform better, or instructions or directions about her job. For the following reasons, we do not accept that argument.
3. The meaning of administrative action for the purposes of the SRC Act was considered by the Full Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21. The Court noted at [25] and [71] that the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, by which the current version of s 5A(1) was enacted, stated that an objective of the exclusion was:

to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers compensation.

The word "administrative" must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not "administrative" could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as "administrative" action, but as operational action with respect to the employee's employment.

In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. ... As the tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It 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", unless the action taken was not reasonable, or was not reasonably taken. (Original emphasis.)

1. Rares and Tracey JJ said, at [62]-[63], that there could be no doubt, from the non-exhaustive list of actions in s 5A(2) about the width of the expression "reasonable administrative action" in s 5A(1). Nevertheless, each of the actions listed concerned:

something outside the actual employment, or job, that the employee was required to perform.

...

Each ... was a matter that was in respect of, but apart from, ordinary duties or tasks of the employment or job itself.

1. It is clear from the evidence that, on each occasion on which the respondent relies, Ms Hoppenbrouwer had cause to talk to Ms Ferguson about how she was performing her job; on each occasion she had cause to draw to Ms Ferguson's attention something she needed to do better or differently. She was not merely imparting information, or giving directions or instructions, about what the job involved. It was something outside the actual job she was required to do. It was not merely "operational".
2. We are satisfied that each occasion on which the respondent relies was administrative action for the purpose of s 5A(1).

1. In respect of each occasion on which the respondent relies, Ms Ferguson gave evidence that it was reasonable for Ms Hoppenbrouwer to raise the particular matter or matters with her and that it is a manager's responsibility to do so. She contends, nevertheless, that none of the occasions complained of was reasonable administrative action within the meaning of s 5A(2).

1. For Ms Ferguson it is contended that this meeting was not reasonable appraisal action, or reasonable counselling action, or something reasonable done in connection with either (see s 5A(2)).
2. It is submitted that "appraisal" does not occur until the end of a process when an employee is advised of the results of his or her assessment (or performance review, or however the process is described). So, for example, it is said that the meeting on 14 May which was preliminary to the formal annual review, could not constitute appraisal, and nor could the first discussion on 11 January when Ms Hoppenbrouwer spoke to Ms Ferguson about how to achieve 100% of her target.
3. Appraisal in the Oxford English Dictionary means:
   1. the act or an instance of appraising.
   2. a formal evaluation of the performance of an employee over a particular period.
4. According to the Macquarie dictionary, appraisal is "the act of assessing the worth, quality, or condition of anything" or "an assessment or statement of [its] worth, quality or condition".
5. In Beasley and Comcare [2012] AATA 411, the Tribunal distinguished between "feedback" at a mid-year review and appraisal, which it said was the role of the final review. We tend to agree, although it would be too narrow, in our view, to confine appraisal to the final, formal, written outcome of a process that might involve various stages including discussion and exchanges of correspondence towards its end.
6. We accept that the meeting on 11 January was an initial discussion about how Ms Ferguson was to achieve her performance target. It was not part of any formal process. However, we accept Ms Hoppenbrouwer's evidence that she was looking to have Ms Ferguson achieve 100% of her target by the end of the quarter. Performance and outcomes against targets, as Ms Ferguson knew from her half-yearly performance reviews over several years, were measures against which she would be formally assessed.
7. We are satisfied, and find, that this meeting was within the meaning of s 5A(2)(e): "anything reasonable done in connection with" reasonable appraisal action.
8. The respondent contends that this meeting also constituted reasonable counselling action. Ms Ferguson disagrees.
9. "Counselling" has a wide meaning in the SRC Act. In Radulovic and Comcare [2010] AATA 777, the Tribunal said at [76]-[77]:

It is clear that 'counselling' in the therapeutic sense is not the intended meaning. In Domburg v Nurses Board of Victoria, Ashley J said that 'counselling' in an employment relations context 'has an industrial relations flavour' and involves 'something less than a caution or reprimand'. It is the 'least severe - or most benign' of the corrective administrative actions which can be made by an employer or provisional association.

...

The Macquarie Dictionary defines 'counselling' as relevant as: '8) to give counsel to; advise; 9) to urge the doing or adoption of; recommend (a plan, etc). 10) to give counsel or advice'. The Public Service and Merit Protection Commission and Comcare, in a joint publication, refer to 'performance counselling' as a "formal" process in relation to assessment and monitoring of an individual's work performance', while 'effective feedback' is referred to as a form of 'informal counselling'.

1. We agree with those comments. In discussing with Ms Ferguson her statistics and how she might increase her "outcomes", Ms Hoppenbrouwer was giving her informal counsel or advice about her work.
2. Even if we are wrong, and this meeting was not reasonable informal counselling action, we are satisfied that the meetings on 12 March, 14 May and 10 November were reasonable counselling action.

1. We accept Ms Hoppenbrouwer's evidence that the purpose of this meeting was to discuss four matters in particular with Ms Ferguson. Each had been the subject of complaint by other staff. Ms Hoppenbrouwer's aim was for Ms Ferguson to change, and improve, her behaviour. It was not a caution or a reprimand but Ms Hoppenbrouwer was clearly urging or advising Ms Ferguson to adopt different practices.
2. We do not accept Ms Ferguson's claim that she was not aware that "selling" at the counter was not permitted. As noted above, we accept Ms Hoppenbrouwer's evidence that the matter had been brought to staff's attention previously.
3. We are satisfied, and find, that this meeting constituted reasonable informal counselling action by Ms Hoppenbrouwer.

1. It is not in dispute that this meeting was directly related to the formal annual review. It was one of two meetings Ms Hoppenbrouwer was to have with Ms Ferguson in preparation for that review so that she understood clearly what was expected of her during that review. The annual review was a formal appraisal of Ms Ferguson's performance.
2. We are satisfied, and find, that this meeting was done in connection with reasonable appraisal action and was therefore within the meaning of s 5A(2)(e).

1. As already noted, Ms Ferguson has no argument with how Ms Hodgson conducted these discussions; her complaint is that Ms Hoppenbrouwer was indirectly responsible for her mistakes. Leaving that claim aside, the aim of Ms Hodgson's discussions with her was plainly to correct what had happened and ensure it was not repeated.
2. Other than Ms Ferguson's assertion, there is no evidence that Ms Hoppenbrouwer was directly or indirectly responsible for the matters that led to these complaints. In any event, however Ms Ferguson viewed Ms Hodgson's discussions with her, they were plainly reasonable informal counselling action.

1. The respondent submits that action concerning Ms Ferguson's leave comes within s 5A(2)(f) because it was reasonable action done in connection with a benefit in connection with her employment. We accept that leave is a benefit of employment.
2. It is not clear that Ms Ferguson asserts that Ms Hoppenbrouwer's action on this occasion contributed in any way to her condition. She agrees that the arrangement they came to about her leave was "perfectly acceptable" but nevertheless maintains Ms Hoppenbrouwer acted unreasonably. Given her concession about the arrangement they came to, there can be no basis for finding anything unreasonable about Ms Hoppenbrouwer's action. If it is asserted that her action played any part in Ms Ferguson's condition, we would find Ms Hoppenbrouwer's action was reasonable administrative action within the meaning of s 5A(2)(f).

1. For Ms Ferguson it is contended that Ms Hoppenbrouwer's discussion with her following the meeting on 10 November was not counselling but rather a matter of bringing to her attention the importance of staff conduct at meetings.
2. There is no dispute that Ms Ferguson made an "inappropriate" comment at this meeting. Whether Ms Gibbs was offended is not to the point. Ms Hoppenbrouwer's discussion with her was plainly informal counselling action.
3. Mr Kelly's action in sending Ms Ferguson home was reasonable suspension action within the meaning of s 5A(2)(c).

Was the reasonable administrative action taken in a reasonable manner?

1. For Ms Ferguson it is submitted that it was unreasonable for Ms Hoppenbrouwer to raise her statistics at their first meeting and on Ms Ferguson's first day back at work.
2. We do not agree. We accept Ms Hoppenbrouwer's evidence that she had been asked by her managers to talk to all staff by 8 January. There was no reason to delay her discussion with Ms Ferguson. There was nothing to be discussed that required preparation by Ms Ferguson. Moreover, her reaction to Ms Hoppenbrouwer that day suggests she would have reacted badly no matter when the discussion took place.
3. We are satisfied, and find, that Ms Hoppenbrouwer's action was reasonable administrative action taken in a reasonable manner.

1. It is not clear whether Ms Ferguson contends that anything in particular about the manner in which Ms Hoppenbrouwer conducted this meeting was not reasonable. She agreed it was reasonable, and her responsibility as a manager, to raise other staffs' concerns. It is not clear, other than that Ms Hoppenbrouwer would not disclose their names, what was not reasonable. It was not unreasonable for Ms Hoppenbrouwer to decline to disclose their names and focus instead on Ms Ferguson's performance.
2. We are satisfied, and find, that Ms Hoppenbrouwer's action was reasonable administrative action taken in a reasonable manner.

1. For Ms Ferguson it is submitted that it was unreasonable for Ms Hoppenbrouwer to discuss what happened during the meeting at 9.30am, before the branch opened for business, and that she should have done so later in the day. What difference this would have made is not clear. Ms Ferguson did not suggest it would have. It was reasonable for Ms Hoppenbrouwer to attempt to deal with what had happened as quickly as possible. It was entirely reasonable to do so before the branch opened for business
2. It is also submitted that it was unreasonable for Ms Hoppenbrouwer to involve Ms Gibbs in the discussion and that she should have spoken to Ms Ferguson alone. We do not accept that submission. Ms Ferguson had made clear on several occasions that she did not wish to have "one-on-one" meetings with Ms Hoppenbrouwer. Apart from the fact that the comment was directed at her, Ms Gibbs had attended other meetings at Ms Ferguson's request. Ms Hoppenbrouwer had no reason to think her presence would cause Ms Ferguson any problem and there is no evidence that it did. Finally, we accept Ms Hoppenbrouwer's evidence that the outcome would have been the same regardless of when she spoke to Ms Ferguson.
3. Mr Kelly's action in sending Ms Ferguson home after the meeting was entirely reasonable in the circumstances. She was plainly very upset and was upsetting other staff. Perhaps he might have made his comment at another time, when she was not so upset, but Ms Ferguson's perceptions were apparently such that it seems unlikely it would have made any difference when he said it. He reassured her she would remain on full pay. As her email of 30 November shows, she thought he was the only person who "showed any sense" that day.
4. There was nothing unreasonable in the manner in which Ms Hoppenbrouwer and Mr Kelly took action on 10 November. We are satisfied, and find, that their action was reasonable administrative action taken in a reasonable manner.
5. The fact that some action might have been conducted differently, or in a more reasonable manner, is not to the point. In Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, French J (as he then was), considering the meaning of "reasonable" in provisions of the Racial Discrimination Act 1975, said at [79]:

there may be more than one way of doing things 'reasonably'. The judgment required in applying the section, is whether the thing done was done 'reasonably' not whether it could have been done more reasonably or in a different way more acceptable to the court. The judgment will necessarily be informed by the normative elements of ss 18C and 18D [of the Racial Discrimination Act] and a recognition of the two competing values that are protected by those sections.

1. Other staff speak highly of Ms Hoppenbrouwer's management skills and experience. Mr Intine describes her as "a great manager". Ms Gibbs describes her as "great" and "very approachable"; she "wanted us to do our job and bring out the best in people"; she never felt bullied or intimidated by her, "that was not her approach".
2. There is nothing to suggest that Ms Hoppenbrouwer dealt with Ms Ferguson in a manner different from how she would have dealt with any other member of staff in the same position. By Ms Ferguson's own evidence, Ms Hoppenbrouwer gave her positive feedback as well as pointing out where she needed to improve. There is nothing to support the conclusion that what she did was anything other than reasonable administrative action taken in a reasonable manner.

Whether the reasonable action contributed to a significant degree to Ms Ferguson's condition

1. For Ms Ferguson it is submitted that, in order for the respondent to rely on s 5A(2), it must be shown that the reasonable administrative action contributed to a significant degree to her condition. Further, that there is no medical evidence to that effect before the Tribunal; rather, that the medical evidence shows that it was Ms Ferguson's perception of events that caused her condition.
2. For the following reasons, we do not accept that submission.
3. There is no dispute that, subject to any exception, Ms Ferguson suffers an ailment and therefore a disease (and therefore an injury) within the meaning of the SRC Act. A compensable disease is one to which an employee's employment contributed to a significant degree: s 5B(1).
4. The exclusion in s 5A(1) arises where a disease is suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. Nothing in s 5A(1) requires that action to make a significant contribution to the employee's condition.
5. In Silk and Comcare [2012] AATA 638, the applicant made the same submission as Ms Ferguson concerning the contribution of the administrative action to her disease. The Tribunal rejected her submission. It said at [68]:

Section 5A (1) of the SRC Act does not, in terms, require that a "disease" be "significantly contributed to" by "reasonable administrative action taken ... in respect of the employee's employment" in order for it to be caught by the exclusionary proviso to the definition of "injury" in that subsection. The relevant test of causation, as stated in s 5A(1), appears in the phrase "as a result of". That test, in terms, requires, as explained in Hart [v Comcare [2005] FCAFC 16],[Commonwealth Bank of Australia v] Reeve [[2012] FCAFC 21] and Drenth [v Comcare [2012] FCAFC 86] (above), an operative causal relationship between the relevant "reasonable administrative action..." and the relevant "disease". In Reeve Gray J said (at 473):

" ... it is difficult to find in the words 'suffered as a result of' some limitation as to the proximity of the relationship between the condition and the action. Whether the necessary causal relationship exists will be a question of fact in each case, but the words chosen by the legislature to describe the causal relationship do not lend themselves readily to confinement to a direct result, or a result with any particular degree of proximity. ..."

Nor does the phrase "as a result of" in s 5A(1) - unlike the definition of "disease" in s 5B(1) - expressly impose an "evaluative threshold below which a causal connection may be disregarded" (Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 at 249-250): see Re Wiegand and Comcare [2010] AATA 790 at paras 70, 72 and Re Dunstan and Comcare [2012] AATA 567 at paras 280-281. In the Tribunal's opinion, to impose a test of causation which requires a "significant contribution" or a "contribution to a significant degree" by the relevant "reasonable administrative action..." to the relevant "disease", for the purposes of s 5A(1) of the SRC Act, would be impermissibly to put a gloss upon the statutory phrase "as a result of" which significantly alters the test of causation which is expressed in that phrase.

1. We agree, and respectfully adopt the Tribunal's reasons. Even if we are wrong, however, the medical evidence supports Ms Ferguson's claim that those incidents, individually and collectively, were the cause of her condition (a claim which is not in dispute).
2. Two reports from Mr Whyte are before the Tribunal. They make assertions about Ms Hoppenbrouwer's conduct based on Ms Ferguson's account alone and we do not accept his conclusions. When he first saw her on 24 July 2010, he diagnosed her as suffering from Adjustment Disorder with Anxiety and Depression, rather than Major Depressive Disorder, but nothing turns on this. In his view, the "causation of her symptoms" was work-related, specifically "significant bullying and harassment by her manager". He made the same assessment in a report on 14 June 2011.
3. Dr Ransom reported in on 27 June 2011 that Ms Ferguson's injuries:

are work related to a major degree. There is no history to suggest other causes of ongoing psychological distress, and I believe her employment is a substantial contributing factor to her injuries.

1. In his report dated 12 January 2011, Dr Bench detailed at some length the history he took from Ms Ferguson, starting with her first meeting with Ms Hoppenbrouwer. He noted that things "got out of hand" in March 2010; there were further incidents and then the meeting on 10 November. He reported that "the perceived bullying and harassment at work is most likely the predominant contributing factor".
2. If it were necessary to do so, we would find, on the medical evidence, that what happened at work between January 2010 and November 2010 contributed to a significant degree to Ms Ferguson's Major Depressive Disorder.
3. It was submitted for Ms Ferguson that the medical evidence and her own evidence, make clear that it was her perception that she was being bullied and harassed by Ms Hoppenbrouwer, that there was no basis in fact for her perception, and that the respondent therefore cannot rely on the exclusion in s 5A(2). If we understand that submission correctly, it would allow Ms Ferguson to have it both ways. We do not accept that submission. Ms Ferguson's perceptions cannot at the same time be the basis of her claim for compensation and her answer to the exclusion provision.

1. We are satisfied, and find, that the incidents on 11 January, 12 March, 14 May and 11 November 2010 were reasonable administrative action taken in a reasonable manner in respect of Ms Ferguson's employment. The respondent concedes, and we are satisfied, that her condition was the result of those incidents, as well as other incidents throughout the year.
2. Whether or not other factors arising out of the applicant's employment with the respondent contributed to the development of her condition is not to the point. Hart v Comcare [2005] FCAFC 16 established the principle that, however many separate causes of an injury may have arisen out of, or in the course of, an employee's employment, if any one of the causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury.
3. We affirm the decision under review.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr M Couch.

...........[sgd].............................................................

Commonwealth Bank of Australia, Workers Compensation Unit