Comcare v Chambers

Mr Chambers' case, Comcare's Defence, the Tribunal's Decision and the Issues on Appeal 5 Mr Chambers' case in the Tribunal was that his employment at ASIC had significantly contributed to both his psychological condition and his epilepsy. Comcare's defence to this was twofold. First, it submitted that his employment had not significantly contributed to the onset of his epilepsy (although it was accepted that it had done so in the case of his psychological condition). Secondly, in the case of both conditions, Comcare submitted that ASIC had done no more than engage in 'reasonable administrative action taken in a reasonable manner'. These various arguments picked up particular parts of the wording of ss 5A(1) and 5B(1) of the Act. So far as the epilepsy argument was concerned, it could not be a disease under s 5B(1) unless it 'was contributed to, to a significant degree, by the employee's employment by the Commonwealth…'. The term 'significant degree' is defined in the Act in s 5B(3) to mean 'a degree that is substantially more than material'. So far as administrative action was concerned, assuming both conditions amounted to injuries to which s 5A(1) applied, the closing words of that provision excluded from the concept of an 'injury', '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'. 6 The Tribunal concluded that Mr Chambers' epilepsy had not been caused by his employment but it did accept the evidence of Dr O'Neill that stress can make epileptic seizures more likely to occur and it therefore reasoned that Mr Chambers' employment had contributed, to a significant degree, to an aggravation of his epilepsy (as opposed to its initial causation). That was sufficient to find for Mr Chambers on this issue because whilst the definition in s 5B(1) of disease includes an ailment (such as epilepsy) it also includes, as here, 'an aggravation of such an ailment'. 7 In relation to Comcare's defence based on the claim that what had been done to Mr Chambers was the result of reasonable administrative action taken in a reasonable manner, the Tribunal closely examined the events I have but sketched in outline above and concluded that what had occurred was neither reasonable administrative action nor, in any event, action which had been taken reasonably. The exception from the definition of 'injury' in s 5A(1) therefore did not apply and Mr Chambers was entitled to compensation for both conditions. 8 Comcare now appeals from both of these adverse determinations. The issues are short: first, were the steps taken by ASIC in relation to Mr Chambers as found by the Tribunal reasonable administrative action taken in a reasonable manner? Secondly, was the aggravation of Mr Chambers' epilepsy, to a significant degree, contributed to by his employment with ASIC? For the reasons which follow both questions should be answered in the negative. Subject to an amendment to the notice of appeal, this means that the appeal must be partially allowed but also partially dismissed with both parties winning one issue each. The matter should be remitted to the Tribunal to be determined in accordance with these reasons. Each party should bear their own costs.

Reasonable Administrative Action 9 A large part of Comcare's argument about this turned on [65] of the Tribunal's reasons which (with [66]) was as follows: '65. The mid-year performance review document lacks any detail. Mr Stogdale's comments on the assessment form show that Mr Chambers acknowledged that improvements were needed in relation to communication between members of the teams and between him and AA, and giving evidence, Mr Chambers conceded that some improvements were needed. However, we accept that the rating "Improvement required" came as a shock to him and the absence of prior notice meant he was not afforded a real opportunity to respond and improve his performance if that was necessary. 66. For these reasons, we are not satisfied that Mr Chambers' mid-year performance assessment was reasonable administrative action and, in any event, we are not satisfied that it was taken in a reasonable manner.' 10 Read in isolation, [65] might be apt to suggest that the unfairness to Mr Chambers consisted solely in his not having been given notice of the proposed rating of 'Improvement required' before his performance review. However, a fair reading of the Tribunal's reasons as a whole shows that its concern was not just the failure to give Mr Chambers notice of what the difficulty with him was before the review but, more importantly, the failure of Comcare to identify at any point what ASIC's difficulty with Mr Chambers' performance actually was. This failure curiously extended to the hearing before the Tribunal. I have referred already at [2] above to the Tribunal's statement at [21] of its reasons that what the problem was remained obscure. Other parts of the Tribunal's reasons were to a related or similar effect. For example: [21]: 'Both Mr Savundra and Mr Stogdale seemed unable, or unwilling, to detail their concerns, and AA was not called to give evidence'; [21]: '…the lack of documentation of concerns about Mr Chambers' performance seems surprising'; and [22]: 'Details of this incident and the alleged bullying did not come out in evidence before the Tribunal'. 11 Contrary to Comcare's submission, I accept that the Tribunal rejected the evidence of Mr Stogdale and Mr Savundra about the way in which Mr Chambers had been managed. The Tribunal dealt with this at [59]-[66] of its reasons. It made the point that the contemporaneous documents did not record any problems with Mr Chambers, a point the rhetorical significance of which must surely have soared in the Tribunal's mind when no useful evidence was led before it on that topic. It is true that it did not explicitly say that Mr Stogdale and Mr Savundra were giving false evidence, but it is tolerably clear that it implicitly did not accept their version of how Mr Chambers had been managed. 12 Comcare's first argument was contained in Ground 3 of its notice of appeal and was in these terms: '3. It was not open on the evidence for the Tribunal to conclude that the employer was required to provide the Respondent with 'prior notice' and a 'real opportunity to improve' prior to the midpoint performance assessment for it to constitute reasonable administrative action undertaken in a reasonable manner. The nature and purpose of the mid-point performance assessment was not considered, or was misinterpreted, or misapplied to the facts found by the Tribunal.' 13 This ground has two limbs to it. The first is that a mere failure either to give Mr Chambers notice of ASIC's difficulties with his performance prior to his review or a real opportunity to improve his performance prior to his transfer to the new, non-existent position of Senior Specialist, could not be sufficient to mean that the process thereby resulting was not reasonable administrative action (or not undertaken in a reasonable manner). The difficulty with this argument is that it is apparent that this is by no means all that was involved in the Tribunal's process of reasoning. Indeed, the principal feature of its reasoning seems to have been its surprise at the inability of Comcare or its witnesses, even at the hearing, to identify what the performance difficulties with Mr Chambers had been. In the absence of an identified problem with Mr Chambers, the Tribunal reasoned that the performance review process could not be reasonable. This is not to endorse, as Comcare submitted, a process in which the Tribunal substituted its own views for those of ASIC on the question of how Mr Chambers should have been managed. Rather, it is merely the commonplace observation that an employer who claims that an employee has been subject to a review because of performance issues (and who is for good measure thereafter transferred to a non-existent position because of those same issues) gains little traction in showing this to be a reasonable process if it is unable, or worse, unwilling to identify what those performance issues were. The actual performance issues which ASIC was relying upon, and Comcare's concomitant failure to properly identify them, seemed to the Tribunal, and I must say now seems to me, the courtroom elephant. In many ways, Comcare's case before the Tribunal appears to have resembled a surreal play in which the main character never arrives. 14 It follows that this ground is to be rejected because it materially misstates what the Tribunal did. ASIC's actions were unreasonable not just because Mr Chambers had been given no notice or opportunity to improve. It was because even by the time of the Tribunal hearing, Comcare could not articulate what Mr Chambers had done wrong. From Mr Chambers' perspective, it must have been all very baffling. 15 The second aspect of Ground 3 is an argument that the Tribunal failed to consider the nature and purpose of the mid-point performance review. Comcare's notice of appeal is somewhat obscure on the nature of the error of law involved in this alleged failure. Whatever was meant, the answer is, I think, twofold. First, I am not satisfied that the Tribunal did in fact fail as alleged. It referred to the documents concerned with reviews at [57] of its reasons (ASIC's Performance Management Policy 2013, Performance Management Framework and the Enterprise Agreement 2011-2014). I do not see why I should infer that the contents of these documents were not taken into account or that reference to them was just for show. It is, after all, for Comcare to prove that the nature of the mid-point performance review was not taken into account and I do not think that burden has been discharged. Secondly, I do not accept that the 'nature' of the mid-point review was a mandatory relevant consideration of the kind discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-41. 16 To the extent that Ground 3 contains a contention that the Tribunal has misinterpreted or misapplied the nature and purpose of the mid-point performance review, this is difficult to reconcile with the argument that it was not taken into account at all. But leaving that quibble to one side, the substance of the point as developed in Comcare's written submissions appeared to be that the mid-point performance review was an interim review which formed but a step along the way to an annual review. The point of this argument was, I think, to reduce the significance of the mid-point review. But I do not see how that helps Comcare even if it be correct. The real difficulty lies in having a performance review process detached from the need for an apparent performance issue calling for review. In any event, it is unclear to me how this argument involves a question of law within the meaning of s 44 of the AAT Act. The Tribunal had to ask itself whether there had been administrative action. It did so and it answered this question 'yes'. It then had to ask itself whether this administrative action was reasonable. It answered that question 'no'. I am unable to identify any error in the way it approached that issue. 17 Comcare's next point, in Ground 4, was that the Tribunal had misconstrued s 5A of the Act by requiring that administrative action should have a remedial or corrective nature. Reference was made to [67] of the Tribunal's reasons: '67. It is arguable that the decision to transfer Mr Chambers was not administrative action but, rather, a reassignment of duties without any loss of benefit. On its face, it does not appear to have the same remedial or corrective character as the other matters in the (non-exhaustive) list in subsection 5A(2).' 18 But Comcare's submissions ignore [68]: '68. If the decision to transfer Mr Chambers was not administrative action, the exclusionary provision does not apply. However, in the context in which it occurred, being to remedy an apparent problem in the teams, we think it is probably capable of being seen as administrative action of [sic] the purposes of subsection 5A(2).' 19 This makes clear that the Tribunal applied no such test. If it had it would have concluded that administrative action was not present. It did not do this. 20 Ground 5 was as follows: '5. Having regard to the evidence before it, the Tribunal's conclusion that the transfer was not reasonable and/or taken in a reasonable manner because the Respondent was not provided prior notice or an opportunity to improve, was illogical given its findings that: 5.1. Transfers for operational reasons do not require prior consultation with staff; and 5.2. the Respondent was transferred because of "the urgent need to change the culture in the teams, largely on account of his performance".' 21 This involved a contention that the Tribunal had reasoned irrationally (presumably in the sense outlined in Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332; Comcare's submissions were elusive on what its argument actually was) because it could not, on the one hand, conclude that Mr Chambers should have been given 'an opportunity to improve' whilst also concluding at the same time that transfers of staff could occur without consultation with staff. What the Tribunal actually said was at [69]-[71]: '69. There can be no doubt that managers have a right and a responsibility to deploy staff according to an agency's operational requirements. They are not required to consult staff beforehand although there will likely be fewer problems if they do. 70. However, there is no evidence before us to suggest that Mr Chambers was transferred for operational reasons, for example to better manage workloads. Rather, his transfer was to deal with what Mr Savundra and Mr Stogdale considered the urgent need to change the culture in the teams, largely on account of his performance. It is still not clear to us how much of that was attributable to Mr Chambers, and the mid-year performance assessment does not identify any improvements required or further development in order to achieve them. 71. If the transfer was implemented in order to manage a real or perceived problem with Mr Chambers' performance, he should have been given a real opportunity to improve even if no detriment such as a reduction in salary attached to the transfer.' 22 The only tenable reading of this is that the Tribunal concluded that Mr Chambers was not transferred for operational reasons but because of performance issues about him perceived to exist by Mr Stogdale and Mr Savundra. Since the Tribunal did not conclude that he was being transferred for operational reasons there was no inconsistency with a conclusion that he should have been given an opportunity to improve. The second variant of this ground was that there was an inconsistency between the conclusion that he was transferred because of 'the urgent need to change the culture in the teams, largely on account of his performance' and the finding that he was not provided with prior notice or an opportunity to improve his performance. If the words 'largely on account of his performance' were missing this ground might be something to ponder. But there is no inconsistency whilst those words remain. 23 Ground 6 was as follows: '6. The finding that there was "no evidence before [it] to suggest that Mr Chambers was transferred for operational reasons" cannot be sustained on the basis of the Tribunal's Reasons and having regard to the evidence before it.' 24 The relevant part of the reasons was at [70] which is set out above. It is true that the Tribunal did say there was no evidence that he had been transferred for operational reasons but it gave an example of what it meant by that, which was a transfer better to manage workloads. This had some resonance with what it had said at [69] where it referred to the right of management to deploy staff where they were needed 'according to an agency's operational requirements'. It is implicit in Comcare's submission that the reason the Tribunal identified for Mr Chambers' transfer was an operational reason. That reason was at [70] and was 'to deal with what Mr Savundra and Mr Stogdale considered the urgent need to change the culture in the teams, largely on account of his [Mr Chambers'] performance'. I can certainly see that this could be described as an operational reason as a matter of ordinary language and hence, to an extent, the force of Ground 6. But it remains necessary to recall why this question is even being asked. The language of 'operational' reason or purpose does not appear in s 5A of the Act. The language it uses is the language of administrative action. That term is not defined but s 5A(2) does provide that: '(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.' 25 Regardless of whether the action which was taken can, as a matter of ordinary English, be described as operational, the fact remains that the Tribunal had concluded the action which had been taken was administrative action and Comcare does not contend to the contrary. Indeed, its whole case on this point was that what ASIC had done to Mr Chambers had involved reasonable administrative action carried out in a reasonable way. The question then is why does it matter, as Ground 6 assumes, if the Tribunal was wrong in concluding that there was no material before it suggesting the reasons ASIC had acted were operational in nature. The only relevance would appear to be as an aid to an argument that the action which had been taken was not administrative action because it was operational in nature (as this Court held in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 at 473 [31]). But that argument, if accepted, would mean that Comcare's defence would fail. Assuming that the error in this ground is established as a species of no-evidence point, the question then becomes whether any relief should flow from it. For the reasons I have just given, this conclusion was not material to the Tribunal's reasoning in any way which was adverse to Comcare. If anything, it was an error in its favour. Without finally concluding that Ground 6 is established, I would dismiss it as immaterial. 26 There were many other arguments ostensibly about reasonable administrative action concealed within the submissions prepared on Comcare's behalf. It was said that the Tribunal had failed to indicate whether it accepted Mr Chambers' account or that of Mr Stogdale and Mr Savundra. I do not agree; it rejected the latter as I have explained above. It was alleged that the Tribunal had impermissibly asked itself whether it would have acted as ASIC had instead of asking whether ASIC had acted reasonably. I do not agree that this is what the Tribunal said either as a matter of formality (see [66] of its reasons, set out above at [9]) or as a matter of substance. What it said, as I have already observed, was the commonplace observation that the forensic endeavour of proving that a process of performance management was reasonable pulls up well short when the decision-makers eschew saying what the problem with the employee's performance was either to the employee or, more importantly, to the tribunal of fact. 27 It was then said that the Tribunal had failed to advert to the fact that Mr Chambers had unsuccessfully sought review of the decisions not only internally but also before the Fair Work Commission (in fact the Tribunal did so at [43]); that it had unlawfully imposed a duty upon ASIC to give Mr Chambers a hearing in an administrative law sense before his performance review (it did not - it just thought that giving him a performance review without telling him what he did wrong and then transferring him to a non-existent position was difficult to describe as reasonable); that it had failed to give reasons for concluding that such a duty existed (unsurprising when it did not so conclude); or to refer to evidence for the existence of such a duty (also unsurprising for the same reason). It was said that the Tribunal's reasons were generally affected by its misunderstanding that administrative action needed to be remedial or corrective (unlikely since that was not its conclusion) and that it was difficult to reconcile Mr Chambers' evidence that there might have been room for improvement in his performance with the Tribunal's actual findings of fact (not explained by Comcare was which findings it had in mind, or why it mattered or to what ground of review such an inherently factual contention might go in an appeal on a question of law under s 44 of the AAT Act). 28 All of this is quite unpersuasive. Comcare's grounds of appeal relating to this were Grounds 3-6. Each should be dismissed.

Aggravation of epilepsy 29 The Tribunal accepted at [54] of its reasons that the workplace stress to which Mr Chambers had been exposed contributed to a significant degree to rendering his predisposition, or previously asymptomatic condition of epilepsy, symptomatic, and reasoned that this was an aggravation of an ailment within the meaning of s 5B(1)(b) of the Act (hence a 'disease' under s 5B(1) and therefore an 'injury' under s 5A(1)). The evidence for this and its conclusion were set out at [53]-[54]: '53. Dr John O'Neill, neurologist, saw Mr Chambers six or seven times between August 2014 and March 2016. He provided written reports and gave oral evidence. In a report dated 1 October 2015, Dr O'Neill stated that he did not accept that stress can "cause or accelerate an underlying pathological process causing neurocognitive impairment or epilepsy" but he was "firmly of the view" that seizures are more likely to occur, and neurocognitive function is likely to be less effective, in the setting of stress especially if associated with impaired sleep. He therefore concluded that "work stress experienced by Mr Chambers could aggravate (render more symptomatic) his neurocognitive impairment and epilepsy". 54. Dr O'Neill gave evidence, which we accept, that there must be pathology in the brain for epilepsy to occur. There is no evidence clearly establishing when, or why, that pathology emerged in Mr Chambers but we are satisfied, on the evidence before us, that it is more probable than not that the stress associated with his employment aggravated, or made symptomatic, an underlying condition or vulnerability. We accept the submissions for Mr Chambers that we can reasonably infer, in the circumstances that, his employment contributed to a significant degree to rendering his predisposition, or previously asymptomatic condition, symptomatic.' 30 Comcare's notice of appeal dealt with this point in various ways which were not entirely clear, but its oral and written submissions were a little more focussed. The basic complaint was that the evidence of Dr O'Neill could not support a finding that the workplace stress had caused the aggravation of Mr Chambers' epilepsy. I would call this a no-evidence point. 31 There were two competing hypotheses which could explain the seizures which befell Mr Chambers at the end of 2013. Both involved an assumption that the physical changes to the brain which attend epilepsy had already occurred in him. The first hypothesis was that the epilepsy simply manifested itself for the first time and that the seizures were unconnected to workplace stress. The second was that the workplace stress had caused asymptomatic epilepsy to manifest symptoms in the form of seizures. 32 The task for the Tribunal was, therefore, to decide whether Mr Chambers had demonstrated the latter on the balance of probabilities. He could do this by proving the latter was more likely than not and also, I think, by demonstrating that the former was less likely than not (since the two exhausted the available outcomes). 33 Dr O'Neill's evidence demonstrated that the presence of workplace stress made the occurrence of seizures more likely. But he did not say how much more likely nor did he explain, at the level of how the disease operates, the organic process by which stress had this effect. Mr Leo Grey of counsel, who appeared for Mr Chambers, thoughtfully submitted that the case was like that presented in Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36. There the plaintiff had been exposed to asbestos in both occupational and non-occupational settings and had contracted mesothelioma. The Court accepted that the epidemiological and other expert evidence supported a finding by the Dust Diseases Tribunal that occupational exposure to asbestos had materially contributed to the development of the plaintiff's mesothelioma which allowed the conclusion to be drawn that the exposure had caused the disease. 34 As Mr Snell for Comcare pointed out, however, this case was somewhat different because here there were two equally available explanations for the onset of the seizures. One was epilepsy taking its natural course and the other was the seizures being an aggravation of epilepsy caused by stress; also Dr O'Neill's evidence was only that workplace stress 'could' have aggravated Mr Chambers' neurocognitive impairment. He submitted the case was, therefore, more like the situation in Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111 ('Ellis'). In that case, a smoker who had worked with asbestos was trying to prove that it was the asbestos which had caused the lung cancer from which he was suffering. The High Court observed (at 137 [70]) that the evidence that these substances 'may' cause cancer did not, without further evidence, allow one to choose between the competing hypotheses and to do so was conjecture. 35 I think Mr Snell is correct. Knowing that stress makes the seizures more likely does not tell me on the balance of probabilities that this is what caused Mr Chambers' seizures. Consequently, I accept Comcare's submission that Dr O'Neill's evidence (which was as good as the argument got) could not sustain a conclusion on the balance of probabilities that Mr Chambers' workplace stress was the cause of an aggravation of epilepsy constituted by his seizures. 36 I have not overlooked Mr Grey's argument that Dr O'Neill's opinion, when combined with the fact that Mr Chambers had in fact experienced stress, was sufficient material from which the Tribunal could infer aggravation. But I do not think that this overcomes the difficulty flowing from Ellis where the same argument could easily have been made. Nor does it take account of the fact that Dr O'Neill's evidence that the stress to which Mr Chambers was exposed could have caused seizures was evidence given by him when already apprised of the fact that Mr Chambers had experienced stress. 37 Comcare's ultimately successful argument is not reflected in the grounds in its notice of appeal. The course I propose, since the case was actually argued on the basis upon which I have just decided it, would be for the notice of appeal to be amended to reflect the way the case was conducted.

Result 38 I will refrain from making any orders at this point beyond giving Comcare an opportunity to amend its notice of appeal. If this is opposed, I will hear any argument necessary, although my initial impression is that the reasons above reflect the debate which actually occurred. I will stand the matter over to 6 September 2017 for a further case management hearing. If the notice of appeal is amended as I contemplate, the orders would be:

1. Appeal allowed in part.
2. Set aside the Tribunal's determination that Mr Chambers' aggravation of his epilepsy was contributed to, to a significant degree, by his employment with ASIC.
3. Appeal otherwise dismissed.
4. Remit the matter to the Tribunal to be determined in accordance with these reasons.
5. Each party bear its own costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.