Consideration
56 As to ground 4.1, the context is provided by the decision of the Full Court in Hart v Comcare (2005) 145 FCR 29 at [22] concerning concurrent matters referred to in the proviso in s 5A(1) "but does not include …"
57 The Tribunal in that case had identified two concurrent causes: the failure to obtain promotion, which was excluded by the then s 4(1), and the events connected with the process of promotion, which was not excluded by s 4(1). The Full Court was dealing with a submission that where there were two operative causes, one compensable and the other not, the approach taken by the Tribunal was correct. The Full Court held that the Tribunal's approach was incorrect and said as follows:
[22] The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry.
[23] It will in any case be for the Tribunal to examine the facts, and assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, maybe a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion.
58 The applicant's point in the present appeal is that the Tribunal did not exclude the results of one of the matters it had held to be within the proviso and instead focussed exclusively on whether another matter it held to be within the proviso was reasonable administrative action taken in a reasonable manner. The Tribunal at [69] found that events in the NICP prior to Ms Martinez moving to the employment team contributed significantly to her condition up to and including 30 August 2010. The expression "contributed to, to a significant degree" is of statutory significance: see s 5B of the SRC Act.
59 Although later in the same paragraph the Tribunal said that the actions, the events in the NICP, made a "contribution" to Ms Martinez' adjustment disorder that was for the purpose of noting the gap in time between those events and the manifestation of her psychological condition some eight months later. I would not construe the absence of the adjective "significant" as intended to convey a different concept when the Tribunal referred a second time in that paragraph to the contribution the events in the NICP made. Further, the Tribunal then considered at some length, at [72]-[75] the character of the administrative actions in the NICP. It would not have needed to do so if those actions were not ones which were, within s 5A of the SRC Act, causally related to the respondent's condition. As the applicant submitted, that consideration by the Tribunal confirms that its reasoning was that the events in the NICP had made a significant contribution to Ms Martinez' condition.
60 The Tribunal concluded that consideration by stating: "The Tribunal makes no findings of unreasonableness on these administrative actions …" However, in my view, this demonstrates error of law because the Tribunal should have made a finding one way or the other. This is because if those actions, being a concurrent cause, had been reasonable administrative action taken in a reasonable manner then the proviso in s 5A(1) would have operated to prevent the respondent's psychological condition being an injury as defined in that section.
61 Even if there was no live issue between the parties as to other causes, as contended for by the respondent in this Court, the Tribunal by its reasoning identified such a cause. It follows that in the present case the applicant is not subject to the strictures referred to in Commissioner of Taxation v Raptis (1989) 89 ATC 4994 at 4999 per Gummow J and by the Full Court in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18, that is:
There must be some difficulty ... in finding an "error of law" in the failure in the Tribunal to make a finding first urged in this court.
62 As to the second limb of this ground, management by Ms Ward before 21 June 2010, in my view a different analysis applies because the Tribunal did not, and was not required to, analyse discretely the administrative actions constituted by the management of Ms Martinez by Ms Ward. All of those actions were taken by the same person and in the same administrative unit. The whole period of management by Ms Ward is said to have contributed significantly to Ms Martinez' condition. It does not appear the parties put submissions suggesting a differential analysis for the two periods. It is, in my view, putting too much emphasis on "including" in the expression "including meetings beginning 21 June 2010" in [69] of the Tribunal's reasons to treat the events before 21 June 2010 as constituting of themselves and separately a significant contribution.
63 I am not persuaded that there was any failure by the Tribunal to take into account a mandatory relevant consideration in respect of this second limb or that it otherwise erred in law in that respect. Commissioner of Taxation v Raptis (1989) 89 ATC 4994 applies.
64 I therefore uphold grounds 4.1.a. and b. but reject grounds 4.1.c. and d.
65 I turn now to questions of law 2.2 and 2.3 and the corresponding grounds 4.2, 4.3, 4.4 and 4.5.
66 In my opinion, it is not necessary in this case to consider the Tribunal's findings of fact or drawing of inferences because its reasons showed that it misconstrued the statutory proviso in s 5A(1) of the SRC Act and thus erred in law.
67 The beginning of the error is seen at [70] of the Tribunal's reasons where the Tribunal said that to decide whether the administrative action was taken in a reasonable manner "requires an examination of whether the administrative action is "sensible, moderate,… tolerable [and] fair". This proposition was derived from Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [22] which was in turn derived from definitions of the word "reasonable" in the Concise Oxford Dictionary. In Re Georges and Telstra Corporation Ltd the Tribunal said:
[22] I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.
68 But in statutory interpretation it is one thing to use a dictionary definition to identify a range of possible meanings of a word: it is another to treat those different words in the definition as if they were synonyms for the word in its statutory context. No doubt the other words used in a dictionary definition have meanings which overlap with the word used in its statutory context but it is unlikely that they have the same meaning. As the Full Court said in Robert Bosch (Aust) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education (2012) 206 FCR 92 at [68]:
Although dictionaries give a number of meanings for the word…, we agree with the observation of the Full Court in Polo/Lauren Company LP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266 at [24]:
It is convenient to pause to consider the assistance that dictionary definitions, if any, provide to such questions of statutory interpretation. The common law has long approved of dictionary definitions to assist in statutory interpretation (see eg R v Peters (1886) 16 QBD 636 at 641 per Lord Coleridge CJ), but while this is a useful reference point, and indeed the approach taken by the learned first instance judge and by counsel, a dictionary definition is not conclusive and must be used with caution. As Mason P in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 noted at [28]:
A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose.
See also Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560.
69 This approach to the word "reasonable" in its statutory context was not immaterial as may be seen from the final statement made by the Tribunal in its analysis at [92] where the Tribunal said that what Ms Ward did "was not tolerable or fair in the circumstances and meant she did not undertake a management action in a reasonable manner."
70 A further error of statutory construction, where the Tribunal was, in my opinion, also distracted from the statutory language was in the use it made of the Comcare OHS Guide. This guide said it was to provide advice to individuals who believed they had experienced, or were experiencing, bullying in the workplace.
71 It was not the source of the information which led the Tribunal into error but the treating by the Tribunal of the matters in the guide as establishing that the administrative action was not taken in a reasonable manner within the meaning of s 5A(1) of the SRC Act.
72 It will be recalled that the Tribunal said that the guide said that "whether intended or not if, objectively, the effect of action by a supervisor is to humiliate, offend or distress an employee and that this 'should reasonably have been expected', it amounts to bullying" and to bully someone is not to conduct administrative action in a reasonable manner.
73 However, in my opinion, the impact on the employee cannot of or by itself establish whether or not administrative action was taken in a reasonable manner within the meaning of s 5A(1), but this is the effect of the Tribunal's reasoning. The Tribunal, in its reasons, does not set out any consideration of the fuller circumstances, such as whether there was another convenient location for the meetings, whether Ms Martinez asked for the meetings to be conducted elsewhere, whether it was evident that Ms Martinez was upset by the location of the meetings or whether, in a small group of a very few employees working in juxtaposition to each, any other administrative action to improve Ms Martinez' performance would have been noticed by the other employees.
74 The point is underlined in that the Tribunal misunderstood or misapplied the guide. On page 1 of the guide the following is set out:
This guide provides information including:
> what bullying is and is not
> examples of bullying behaviour
> dealing with bullying behaviour
> what to expect from a Comcare occupational health and safety (OHS) investigation.
Bullying is a recognised OHS hazard. Bullying is not acceptable in any workplace and should not be tolerated.
2. WHAT IS BULLYING?
Bullying is repeated unreasonable behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to a person, or group of persons, which creates a risk to health and safety.
Workplace bullying can be:
> intended - where actions are intended to humiliate, offend, intimidate or distress, whether or not the behaviour did in fact have that effect
> unintended - which although not intended to humiliate, offend, intimidate or distress, did cause and should reasonably have been expected to cause that effect.
(Emphasis in original)
75 The Tribunal, in its reasons, did not address the issue of "repeated unreasonable behaviour" which is the first part of the description of bullying in the guide. Further, the Tribunal did not address section 6 of the guide which is entitled "What is not Bullying?" and discusses the interrelationship of reasonable management action and workplace bullying. After stating that a single incident does not constitute workplace bullying although it may be distressing or harmful to the individual, the guide stated:
REASONABLE MANAGEMENT ACTION
It is important to distinguish between your manager/supervisor exercising his/her legitimate authority at work, in a proper and reasonable way, and instances of bullying. Management action is reasonable if conducted fairly, transparently and in line with approved processes. Feedback provided appropriately with the intention of assisting you to improve your work performance, behaviour, or directing and monitoring workflow, does not constitute bullying if it is conducted in line with approved processes.
76 The significance of the error may be illustrated by the consideration that, as submitted by the applicant, some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work.
77 The error made by the Tribunal at [89] was to be distracted from what was or was not reasonable administrative action taken in a reasonable manner in respect of the employee's employment within the meaning of s 5A of the SRC Act by applying a different statement made for a different purpose, which statement in any event the Tribunal took out of context and misunderstood. It was not the mere fact of misunderstanding the guide that constitutes the error of law but the consequent misunderstanding of the meaning of the statutory language in s 5A which it was the Tribunal's task to apply.
78 In my opinion, even if the Tribunal did not use the guide as mandating its conclusion, as submitted by the respondent, it certainly applied the bullying guide and reached its conclusion on the basis of that guide or part of it. That the error was not immaterial is put beyond doubt by reason that, in its conclusions at [92], the Tribunal paraphrased its earlier conclusion that the administrative action was taken in a manner which could reasonably be anticipated would result in the humiliation of the employee and thus incorporated its earlier discussion of bullying.
79 As to the use by the Tribunal in [89] of the adjective "insensitive", which the applicant contended constituted an error of law, it is not clear to me that the Tribunal used that word as a synonym for "unreasonable" and I am not persuaded that, if it was a finding of fact, it was a finding of fact for which there was no evidence. Also, as part of a larger analysis I do not consider that the use of the word "insensitive" itself shows an error of law.
80 As to [92] of the Tribunal's reasons, as I have said the error in relation to bullying is carried forward into the Tribunal's analysis. So also carried forward is the reference to what is tolerable or fair as synonyms for what is administrative action taken in a reasonable manner within s 5A(1). Each of these errors vitiates the analysis and conclusion in [92].
81 The further error of law which the applicant contends is evident in this paragraph goes to the issue of alternatives. In my view it could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably. However, in this paragraph, the Tribunal did not reason that the alternative options would effect a remedy to the administrative problem of Ms Martinez' underperformance or provide a program of education and assistance for her. For that reason, in my opinion, the alternative options identified by the Tribunal, that is, Ms Ward seeking advice from her superiors or from the human resources team about an alternative approach, could not, at that level of abstraction, assist in the conclusion that the administrative action taken by Ms Ward was not taken in a reasonable manner. It follows, in my opinion, that the Tribunal's approach to alternatives reveals a further misconstruction of the proviso in s 5A(1).
82 The Tribunal referred to Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 a case which concerned s 18D of the Racial Discrimination Act 1975 (Cth) which provided:
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
In my view, since context is a large part of statutory construction, it is not appropriate to start from a context so remote from the SRC Act, particularly given the international law background to s 18D. I would of course agree with French J, as his Honour then was, that the word "reasonable" allows the possibility that there may be more than one way of doing things "reasonably", and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.
83 I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47-48 where his Honour said, in a context much closer to the present legislation:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
84 In my opinion, for the reasons I have given, ground 4.2 is made out on the basis that paragraphs a., c., d. and e. of ground 4.2 establish the Tribunal's misconstruction of the statutory proviso in s 5A(1) of the SRC Act. I do not find it necessary to consider the other bases on which ground 4.2 was put. Grounds 4.3 and 4.4 of the notice of appeal are also made out for the same reason.
85 The respondent submitted that the question of law numbered 2.2 and the corresponding ground 4.2, in particular, did not give rise to a question of law and relied on Comcare v Etheridge (2006) 149 FCR 522 at [28]-[29] where Branson J, with whom Spender and RD Nicholson JJ agreed said:
[28] It is not useful to examine separately each of the other purported questions of law stated in the four notices of appeal. The following question, which is taken from the notice of appeal filed in WAD 123 of 2005, is illustrative of their nature:
"whether the evidence and other material before the Tribunal was such that the Tribunal could only find that, upon inhaling or ingesting an asbestos fibre or fibres in the course of his employment by the Commonwealth, Mr Ethridge [sic] suffered at the time of that inhalation or ingestion:
a) an injury simpliciter;
b) 'personal injury by accident arising out of or in the course of his employment by the Commonwealth' within s 9(1) of the 1930 Act;
c) 'personal injury arising out of or in the course of [his] employment … by the Commonwealth' within s 27(1) of the 1971 Act;
d) 'an injury (other than a disease)' within paragraph (b) of the definition of "injury" in s 4(1) of the SRC Act"
(Emphasis in original.)
[29] The invitation, which is inherent in the above question, to examine the evidence and other material before the Tribunal is sufficient to show that it is not "a question of law" within the meaning of s 44(1) of the AAT Act (see, Birdseye at [18]). It is at best a mixed question of law and fact. Looked at more critically, it is open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of the controversy that came before the Tribunal for determination. This is not an invitation that the Court may accept on an appeal under s 44(1) of the AAT Act.
86 However, in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 Allsop J, with whom Lindgren and Emmett JJ agreed, explained Comcare v Etheridge (2006) 149 FCR 522 as follows, Collins being a case involving s 120 of the Veterans' Entitlements Act 1986 (Cth). His Honour was considering an argument, the first of two arguments, that even if the Tribunal had gone beyond the process of assessment and had entered into the prohibited domain of fact finding, prohibited because of the terms of s 120 of the Veterans' Entitlements Act 1986, that was not a question capable of raising a question of law for the purposes of s 44 of the AAT Act, and that the Tribunal could only be found to have erred if the conclusions it reached were unreasonable or capricious:
[55] The first of these two arguments rests on a number of Full Court decisions including Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at [18]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; Comcare v Etheridge (2006) 149 FCR 522; and HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291. These authorities, it was submitted, prevented an error of the kind asserted (that the Tribunal exceeded what was legally open to it to do in the formation of its opinion for s 120(3)) being capable of being a question of law for the purposes of s 44 of the AAT Act. This was so, it was submitted, because the Court would need to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law. I reject this argument. Nothing in any of the cases referred to at the commencement of this paragraph gainsays the proposition that a properly framed question of law directing the Court's attention to the manner in which the Tribunal failed to discharge its obligations according to law under s 120(3) can be the subject of an "appeal" under the AAT Act. All those cases were directed at the necessity for there to be a proper and precise framing of a "question of law" to found the statutory authority of the Court under s 44 of the AAT Act to dispose of the appeal. Nothing in these cases limits the reach of s 44 to questions of law divorced from the need to look at facts. If, as here (on the hypothesis put forward on behalf of Mrs Collins), the Tribunal has begun a process of fact finding by preferring some evidence to other evidence or by rejecting conflicting material in the formation of its opinion as to reasonable hypothesis, it would have exceeded the statutory task required of it under s 120(3) of the Veterans Act. There can be no doubt that a properly framed question of law raising that legal error would be the legitimate subject of an "appeal" under s 44 of the AAT Act. All the cases relied upon were dealing with what has become an endemic problem in the failure of applicants in appeals under s 44 to frame the question as a question of law, including, but not limited to, the practice of raising of factual issues or simply expressing subject matter to set the outer limits of debate before the Court.
87 It follows that it is too simple a proposition to say that there cannot be a question of law within s 44 of the AAT Act merely because it is necessary to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law.
88 In my opinion, at least to the extent which question of law 2.2 and the corresponding ground 4.2 pose the question whether those findings show that the Tribunal misconstrued the statutory language, then the question and the corresponding ground raise a question of law within s 44 of the AAT Act. Having said that, as I have indicated above, I would not regard a finding by the Tribunal that, for example, Ms Ward's management of Ms Martinez was not tolerable or fair as being, of itself, a finding of fact but rather an evaluative conclusion: see, in a different context, Pfizer Pty Ltd v Birkett [1999] FCA 1778 at [11]-[13] per Mathews J. In judicial review, in considering findings of fact which are said to be legally impeachable and thus go beyond the simple fact finding referred to by Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77, it is, in my view, impermissible to elide findings of primary facts and an evaluative conclusion or opinion formed on or from those primary facts. This is because, at least, the evaluative conclusion would in most circumstances be founded on a number of primary facts and to challenge an evaluative conclusion on the ground that the fact did not exist or there was an absence of probative material would tend towards impermissibly canvassing the merits. It will be recalled that in Waterford v The Commonwealth (1987) 163 CLR 54 Brennan J said at 77 that "There is no error of law simply in making a wrong finding of fact".
89 As to denial of procedural fairness, ground 4.7, the applicant contends that Comcare was not sufficiently on notice that an issue in the proceedings was whether Ms Ward had given adequate consideration to Ms Martinez' circumstances in her choice of administrative action in relation to Ms Martinez. In the applicant's submission, the difference is between knowing of the personal circumstances on the one hand and adequately taking them into account in the management of Ms Martinez on the other.
90 This cannot be decided in the abstract but has to be considered as a matter of practical injustice.
91 In my opinion there has been no denial of procedural fairness in this respect: knowledge of Ms Martinez' personal circumstances and acting on that knowledge sufficiently to constitute taking (reasonable administrative) action in a reasonable manner are sufficiently related. The Tribunal's separate identification of the point was, in my opinion, one of emphasis for the purposes of analysis and, in the context of procedural fairness, did not serve unfairly to create a new issue.
92 Further, in my view, the issue was adequately put to Ms Ward in cross-examination, particularly in the following question and answer:
… I am saying, if you're thinking about strategies about improving her work performance, you need to be fully cognisant of what limitations there are on her capacity to focus that arise out of the personal issues, don't you?
No, I don't think… I need to know any more than what I did know.
93 The point was also substantially addressed in closing submissions to the Tribunal on behalf of the present respondent in the context both of paragraph 40 of the Department's Performance Management and Development Policy under the heading "Managing Performance Concerns" and also by reference to the decision of the Tribunal in Re Georges and Telstra Corporation Ltd [2009] AATA 731 which includes a reference to considering the particular circumstances of the individual in the context of taking administrative action in a reasonable manner.
94 No objection or adverse comment in closing submissions to the Tribunal was made by experienced counsel then appearing for Comcare.
95 As a further test of practical injustice, the applicant before this Court did not explain what it would have done in addition or differently in the Tribunal to address the question of consideration of Ms Martinez' personal circumstances in Ms Ward's management of Ms Martinez.
96 For these reasons, in my opinion, ground 4.7 fails.
97 As to the alleged inadequate reasons, ground 4.6, I do not accept that the Tribunal did not adequately set out its reasons.
98 There is no requirement to set out reasons which the Tribunal did not have, so as to treat the provisions of ss 43(2) and 43(2B) of the Administrative Appeals Tribunal Act as imposing a normative requirement: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
99 In my opinion, contrary to the applicant's submission, it is clear that it was the reasonableness of the manner of carrying out the administrative action that the Tribunal was considering. The Tribunal began this section of its reasons by stating: "The final issue is whether the actions taken, principally by Ms Ward, were undertaken in a reasonable manner." Again, contrary to the applicant's submissions, it is not open to it, under this head, to raise the question of misconstruction that it seeks to raise.
100 Further, despite, perhaps, the usefulness for analysis of separating out the question of "reasonable administrative action" and "reasonable manner", there is no dichotomy in the sense that the question of "reasonable manner" cannot, as a matter of law, encompass a consideration of alternative actions. The composite statutory question is whether a disease, injury or aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
101 I therefore reject the applicant's ground 4.6.
102 I also note that in Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554; [2009] FCAFC 137 the Full Court said at [50]:
Common to the conclusions expressed in Repatriation Commission v O'Brien (1985) 155 CLR 422 by Brennan J and by the Full Court in Dornan v Riordan (1990) 24 FCR 564 remains the prospect of setting aside a decision of the Tribunal in circumstances where the inadequacy in the reasons permits an inference that the decision-making power has not been exercised in accordance with law, or where the deficiency is such that it is impossible to ascertain whether there was any other error in the decision-making process. In such circumstances it may be doubted whether there is such a stark difference in result as may have been assumed between the approach of Brennan J in O'Brien and that of the Full Court in Dornan. The discretion conferred by s 44(4) and (5) of the AAT Act may well permit an order setting aside a decision under appeal.
In my view it is implicit in the first alternative, that is, where the inadequacy in the reasons permits an inference that the decision-making power has not been exercised in accordance with law, that the subject-matter of that inference also be raised as an error of law in its own right. Where that is done, there may be little or no point in pleading the inadequacy of reasons as a ground of error in its own right.