Commonwealth Bank of Australia v Reeve

Associate: Dated: 8 March 2012 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 384 of 2010

JUDGES: GRAY, RARES AND TRACEY JJ DATE: 8 march 2012 PLACE: PERTH

REASONS FOR JUDGMENT RARES AND TRACEY JJ 36 This appeal was brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal that determined that the Commonwealth Bank of Australia was liable to pay compensation to its employee Mark Reeve, pursuant to s 14(1) and Pt VIII of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act). The Bank is a licensed corporation under Pt VIII of the Act. The Bank also sought to review the decision of the Tribunal under s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) but did not rely on any additional grounds or arguments. The appeal was heard by the Full Court in the original jurisdiction pursuant to a direction of the Chief Justice under s 20(1A) of the Federal Court of Australia Act 1976 (Cth).

The critical issue 37 Mr Reeve was a manager at a Perth branch of the Bank in July 2008. He suffered an injury within the meaning of s 5A(1) of the Act, being a disease constituted by a mental ailment or disorder, namely, major depressive disorder when he attempted suicide three times in the early morning of 21 July 2008. The Tribunal found that this disease had resulted from a number of work related factors. 38 The central question on this appeal is whether, in arriving at its decision, the Tribunal correctly construed and applied an exclusion in the definition of injury in s 5A of the Act. It was common ground that the mental ailment that Mr Reeve suffered was "contributed to, to a significant degree", by his employment and that he suffered a "disease" within the meaning of injury on 21 July 2008. However, the definition of "injury" in s 5A(1) excluded a disease "suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment". 39 The Bank contended that the Tribunal erred in construing "reasonable administrative action" in s 5A(1), as being limited to reasonable and legitimate human resource management actions, that did not include matters of general administration, management and implementation of policy even if that action indirectly or incidentally affected the employment of employees. The Bank also argued that the Tribunal erred by failing to consider at all one instance of reasonable administrative action, provided in s 5A(2)(e), being anything done in connection with an action, such as a reasonable appraisal of the employee's performance in s 5A(2)(a). Because of the potential significance of the decision in this appeal to the operation of the Act, the Bank informed the Full Court that it did not seek costs in the event it succeeded.

The Legislative Scheme 40 "Injury" and "Disease" were defined in ss 5A and 5B as follows: "5A Definition of injury (1) In this Act: injury means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following: (a) a reasonable appraisal of the employee's performance; (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment; (c) a reasonable suspension action in respect of the employee's employment; (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment; (e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d); (f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. 5B Definition of disease (1) In this Act: disease 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. (2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account: (a) the duration of the employment; (b) the nature of, and particular tasks involved in, the employment; (c) any predisposition of the employee to the ailment or aggravation; (d) any activities of the employee not related to the employment; (e) any other matters affecting the employee's health. This subsection does not limit the matters that may be taken into account. (3) In this Act: significant degree means a degree that is substantially more than material." (emphasis added) 41 Without being exhaustive, s 6 provided for a number of deemed instances in which an injury to an employee would be taken as having arisen out of, or in the course of, his or her employment. These included, as provided in s 6(1)(a) and (b), an injury sustained: "(a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment; or (b) while the employee was at the employee's place of work, including during an ordinary recess, for the purposes of that employment;" (emphasis added) 42 Relevantly s 14(1) provided: "14 Compensation for injuries (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

The factual background 43 The Tribunal heard a considerable body of evidence, but the relevant matters relating to this appeal can be shortly stated. Mr Reeve had commenced employment with the Bank in January 2007. In August 2007 he was appointed manager of a branch in a suburb of Perth. The Bank undertook a restructure so that on 1 July 2008 a new area manager, Glenn Hurst, assumed responsibility for Mr Reeve's branch. Shortly before then, two staff members, a lender and an assistant manager, in whose competence and performance Mr Reeve had confidence, were transferred out of his branch. The lender was replaced by a person who was unhappy about his transfer. Mr Reeve was upset when he learnt of these changes. As part of his duties, Mr Reeve had to participate in teleconferences three times a week with Mr Hurst and about 15 to 17 other branch managers. At these teleconferences, Mr Reeve and the other branch managers had to report on and explain the results for, or outcomes of, their branch's lending activity and customer experience surveys (customer surveys) for the previous week. The customer surveys were conducted for the Bank by a market research company which contacted customers who had attended at a branch. The researcher would ask questions of the customer about the service he or she received and ask the customer to rate the level on a scale of 1 to 10. Unbeknowst to the customer, the Bank would award 100% for scores of 9 or 10 but zero for any other score. Branch managers were advised of their branch's customer survey results each Friday. Their bonus payments were linked to the customer survey results. 44 Mr Reeve said that he had felt upset and humiliated by what he understood as Mr Hurst's criticism of him in front of his fellow managers in a teleconference on Friday, 18 July 2008. Later that day he received a zero result in his branch's customer survey for that week. He said that he could not face the thought of going through the same scenario at the teleconference on Monday, 21 July 2008 and this led to his suffering a major depressive disorder on that day. The Tribunal accepted the following evidence of Jill Russell, a clinical psychologist as stating the collective causes of his attempted suicide: "Critical Events and Other Contributing Factors On Friday, July 18, 2008, Mark, as Branch Manager, attended a teleconference meeting including 15-17 managers to evaluate the performance of each branch in Area Perth. He described several precursors to that meeting that influenced his response to that meeting, viz: • An organisational restructure resulted in Mark's branch being relocated to another area. There was increased work pressure and stress as a result of this process. • The moving out of two high performing staff members from under his management to other branches in the restructure was destabilising to his branch. • He was then under a different area manager, Mr Glenn Hurst. • A one-on-one meeting with Glenn had not been arranged before the restructure. Mark did not know him personally nor was he presented with an opportunity to speak with him personally. • The results of the customer experience survey and lending achievements were poor in the first two weeks of operation in the new location due to unavoidable circumstances. • The process of evaluation of his branch's results was not adequate in Mark's view. • Mark had to report the less than satisfactory results to the meeting participants. In the immediate time after the evaluation teleconference the following circumstances occurred: • Later on the day of the meeting, the current week's results arrived and indicated that week's required targets were not met. • Glenn Hurst made an unexpected visit to the branch but 'did not engage in any personal discussion' with Mark that would have been a supportive gesture. • Mark could not bear the thought of facing the same circumstances again in the following week's meeting. Mark's experience was one of intense humiliation and shaming in the meeting procedure. Consequently, he could not face the idea that he was expected to repeat a similar scenario the following week. After making order of his work tasks and desk early on the Monday morning that followed the Friday meeting, he made 3 unsuccessful attempts to suffocate himself in his car. ..." 45 The Tribunal then evaluated each of the events and circumstances identified by Ms Russell to ascertain whether any of them constituted reasonable administrative action that fell within the exception to the definition of injury in s 5A(1) of the Act. It said that the instances listed in s 5A(2) were indicative of the kinds of action that the Parliament intended should constitute "reasonable administrative action". In light of this and one passage from the Explanatory Memorandum for the Safety Rehabilitation and Compensation and Other Legislative Amendment Bill 2006, the Tribunal said that the exception meant: "… in accordance with its ordinary meaning, limited to reasonable and "legitimate human resource management actions" (as described in the Explanatory Memorandum) taken in a reasonable manner in respect of an employee's employment, and does not include "reasonable administrative action taken in a reasonable manner in respect of" any matter other than (and not including) an employee's employment, including matters of general administration, management and the implementation of policy, even if such action indirectly or incidentally affects the employment of employees." 46 Next, the Tribunal dealt with the Bank's submissions that its use of the customer surveys fell within the meaning of an appraisal, in s 5A(2)(a) or something reasonably done in connection with Mr Reeve's failure to obtain a benefit, namely a salary bonus, in s 5A(2)(f). It rejected each of those submissions. The Tribunal found that none of the results or outcomes of the customer surveys or the teleconferences at which they were discussed constituted a reasonable appraisal of Mr Reeve's performance within the meaning of s 5A(2)(a). It made that finding because it accepted evidence that such an appraisal did not occur in the weekly teleconferences with the area manager and branch managers. Rather, it found that such a appraisal for the purposes of s 5A(2)(a) would typically involve a one-to-one meeting and discussion between the person whose performance was being appraised and his or her superior. The Tribunal also found that the customer surveys were appraisals by the customers of aspects of a branch's service performance, as opposed to that of the branch manager. 47 The Tribunal found that the customer survey results were one of the Bank's seven key performance indicators relevant to appraisal of a bank manager's performance. It found that 40% of Mr Reeve's annual salary bonus was dependent on his branch achieving satisfactory customer survey results. However, the Tribunal found that s 5A(2)(f) did not apply to the customer survey results. This was because it found that there was no evidence that Mr Reeve had failed to obtain or retain any part of his bonus by reason of unsatisfactory customer survey outcomes at any time prior to 21 July 2008. And, it found that in the financial year ended 30 June 2008, Mr Reeve had achieved his full salary bonus. The Tribunal rejected the Bank's argument that s 5A(2)(f) should be read as including an employee's fear of failing to obtain a benefit because of the poor scores in the customer surveys that were provided to him on 18 July 2008. It held that the statutory language dealt with the fact of, and not an anticipatory state of mind concerning, a failure to obtain a benefit. 48 The Tribunal then considered whether the exception in s 5A(1) otherwise applied to Mr Reeve's having suffered his disease on 21 July 2008. First, it found that the implementation in June 2008 of the bank's organisational restructure and staffing changes at Mr Reeve's branch affected him in his capacity of manager of the branch but was not action "taken … in respect of [his] employment" as manager. Secondly, it found that the teleconference on 18 July 2008 constituted administrative action taken by the Bank through Mr Hurst that affected Mr Reeve and each of the other participants by reason of each person's participation, but that this was not action taken by Mr Hurst in respect of Mr Reeve's (or the others') employment. Thirdly, the Tribunal found that the purpose of Mr Hurst's visit to Mr Reeve's branch on 18 July 2008 had been to meet the branch's lender and to discuss with that person his own key performance indicators and measurement grids, and so was not action taken in respect of Mr Reeve's employment. Fourthly, it found that Mr Reeve's receipt of the customer survey scores later that day and his feeling that he could not face the prospect of participating in the next teleconference on the following Monday, 21 July, likewise did not constitute action taken in respect of his employment. Last, the Tribunal found that the Bank's introduction and implementation of the customer survey process itself amounted to action taken by the Bank for the purpose of measuring the quality of customer service in its various branches, and so was not action taken in respect of Mr Reeve's employment.

The parties' submissions 49 The Bank's amended notice of appeal raised 22 grounds. In essence, however, its argument was that the Tribunal misconstrued and misapplied s 5A in arriving at its decision. The Bank contended that the meaning of "reasonable administrative action" in s 5A(1) was not limited simply to reasonable and legitimate human resource management actions. The Bank argued that this narrowed and glossed the statutory language. It also submitted that the Tribunal erred in using s 5A(2) to limit the scope of the exception in s 5A(1). It contended that each of the 18 July 2008 teleconference, the customer survey results or outcomes and the Bank's use of them in the weekly teleconferences were "reasonable administrative action" within the meaning of s 5A(1) and also one or more of ss 5A(2)(a), (e) or (f). The Bank accepted in argument that it had not put a case to the Tribunal that relied on the branch's lending results or their use or consideration at the teleconferences as a basis that enlivened the exception in s 5A(1). 50 Mr Reeve contended that the Tribunal had not made any of the errors asserted by the Bank. He argued that the Tribunal had correctly applied the law and arrived at a result that was open to it.

Consideration 51 For the purposes of the Act the concept of an "injury" had, at least, three important features identified by Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ in Canute v Comcare (2006) 234 CLR 535 at 540 [10] and by Hayne, Heydon, Crennan and Bell JJ in Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28 at 34-35 [14]. First, s 14(1) obliged Comcare (or a licensee) to pay compensation "in respect of an injury". Secondly, the word "injury" was not used in the Act in the sense of "workplace accident". Rather, as their Honours said the definition of "injury" "… is expressed in terms of the resultant effect of an incident or ailment upon the employee's body", or mind. Thirdly, "injury" was not used in the Act in a global sense to describe the general condition of an employee following an incident. Instead, as their Honours pointed out, the definition of "injury" was disjunctive and so envisaged that an employee might sustain more than one injury. The Act hinges about the concept of "injury": Fellowes 240 CLR at 37 [21]. 52 The ordinary and natural meaning of "administrative" concerns the management of a body or enterprise as opposed to the task or job entrusted to a person who is subject to that management. "Administrative" has the following relevant dictionary meanings: relating to administration ("administration" being defined as "the management or direction of any office or employment") (The Macquarie Dictionary online); pertaining to , or dealing with, the conduct or management of affairs (The Oxford English Dictionary online); In addition, The Oxford English Dictionary, online, defines "administrative leave" as "a leave of absence imposed or granted in extraordinary circumstances; spec[ifically] "enforced leave (paid or unpaid) taken by an employee pending the resolution of a disciplinary investigation". 53 In the first portion of the definition of "injury" in s 5A(1) two of the three conditions, namely an injury and an aggravation of a physical or mental injury, were qualified. The qualification was that the injury or aggravation must arise "… out of, or in the course of, the employee's employment". A similar qualification for the third condition, a disease, was contained in its separate definition in s 5B(1). This provided that a disease meant an ailment suffered by an employee or an aggravation of such an ailment that was "contributed to, to a significant degree, by the employee's employment". All of the three conditions were further qualified by the concluding portion of the definition of "injury" in s 5A(1). That excluded a disease, injury or aggravation that had the following characteristics: it was suffered as a result of reasonable administrative action; that action was taken, first, in a reasonable manner, and, secondly, in respect of the employee's employment. 54 The use in the exclusion in s 5A(1) of the connecting factor "as a result of" replicates an earlier, and since repealed, version of a different exclusion in the previous definition of "injury" in s 4(1) of the Act considered in Hart v Comcare (2005) 145 FCR 29. The exclusion in s 4(1) of previous definition of injury provided that "injury": " ... does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment." (emphasis added) 55 Branson, Conti and Allsop JJ concluded that in the previous definition of "injury" in s 4(1), the expression "as a result of" applied to any operative cause, whether or not there were other operative causes that had nothing to do with the disciplinary action. Accordingly, they held that the exclusion applied so long as the injury was suffered "as a result of" disciplinary action, even if there were other causes also operating: Hart 145 FCR at 32-34 [18]-[26]. 56 Importantly, in the first portion of the new definition of "injury" in s 5A(1) the particular employee's employment had a critical role to play in ascertaining whether the disease, injury or aggravation was sufficient to connect it to a compensable injury. In addition, the other connecting factors were that that the disease was contributed to by the employee's employment, or the injury or aggravation arose out of, or in the course of, the employee's employment. Once a disease, injury or aggravation satisfied those connecting factors, then the effect of the exclusion had to be considered. Notably, the exclusion employed a key qualification that the reasonable administrative action had to be taken in respect of the employee's employment. The first portion of the definition in s 5A(1) applied to circumstances of the aetiology of the disease, injury or aggravation that are ordinary incidents of the employment: i.e. of the employee performing his or her work or as a part of his or her duties or activities as an employee. Thus, s 5B(2)(b) referred to "the nature of, and particular tasks involved in, the employment" as relevant to the question whether the disease was contributed to, to a significant degree, by the employment. 57 However, in contrast to a disease that was contributed to by, or an injury or aggravation that arose out of, or in the course of, the employee's employment, the exclusion in s 5A(1) applied to action taken in respect of that person's employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment. 58 The Bank argued that the requirement for managers, such as Mr Reeve to attend at and report to the meetings that dealt with, among other topics, the customer satisfaction surveys fell within the meaning of "reasonable administrative action taken in a reasonable manner in respect of [Mr Reeve's] employment". It pointed to the fact that Mr Reeve's bonus entitlement at the end of a financial period would be assessed in part based on his branches' results in customer satisfaction surveys. 59 We are of opinion that this argument should be rejected. The Act gave non-exhaustive examples of an injury. These included those in s 6(1)(a) and (b) that were injuries taken to arise out of, or in the course of, an employee's employment. Thus, a bank teller whose duties required him or her to work at a particular time and branch would be taken to sustain an injury if he or she were subjected to violence in an armed robbery at the branch. The concept of "reasonable administrative action taken in a reasonable manner in respect of" the teller's employment in the exclusion of s 5A(1) could not have been intended to comprehend an employer's direction or requirement to a teller to work in his or her job at the time of the robbery so as to exclude the teller's right to compensation under the Act for an injury sustained in the robbery. The reason that the teller would have been in the position of being a victim of the robbery was because that was his employment; it was not because of administrative action taken in respect of the teller's employment. The teller's job would involve him or her being in the bank ready to serve customers. The mere fact that he or she was reasonably told or required to be there so as to do his or her job when, fortuitously, a robbery occurred cannot have been what the Parliament intended to fall within the exclusion in the definition of "injury" in s 5A(1). So much is made clear by the very words of s 6(1)(a) and (b) as they applied to the circumstances in which an "injury" would be sustained as arising out of, or in the course of, the employee's employment. 60 The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken "in respect of the employee's employment". That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee's employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person's employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be "in respect of" something that exists - the person's employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided "the nature of, and particular tasks involved in, the employment". Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, "employment", as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties: cf John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 at 586 [72]-[73] per Dowsett J, with whom Spender J agreed. An analogy, although taken from a different statutory context, can be seen from the facts in The Commonwealth v Rutledge (1964) 111 CLR 1. Thereafter working in her job for over four years, an employee, who was latently susceptible to developing paranoia, was required to perform new duties that involved her spying on fellow employees. Within two weeks the employee developed into an active psychotic. As Menzies J put it (111 CLR at 11): "… it is sufficient, however, if the spying which was her employment for the time being, had in its nature something to aggravate a pre-existing condition of latent paranoia or to accelerate a change from that condition into that of active psychosis. Here I think the evidence did have the requisite generality." (emphasis added) 61 Here, Mr Reeve's employment included the tasks of attending the teleconferences and dealing with the consequences, results and outcomes of the customer surveys. Thus, the teleconferences, customer surveys and their uses were not administrative action taken in respect of his employment - they were part and parcel of his employment. 62 The non-exhaustive list of examples of "reasonable administrative action" in s 5A(2) could not confine the meaning of that expression as used in s 5A(1). So much follows from the chapeau to s 5A(2) that contained the words "without limiting" in referring to the expression "reasonable administrative action": Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 per Mason J with whom Barwick CJ at 674 and Aickin J at 680 agreed. Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee's performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee's employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of "reasonable administrative action" in s 5A(1). Likewise, s 5A(2)(e) and (f) provided that this expression included anything reasonably done in connection with either any of the actions in paragraphs 5A(2)(a)-(d) or the employee's failure to obtain a different position or to obtain or retain a benefit in connection with his or her employment. 63 Each instance referred to in s 5A(2), however, concerned something outside the actual employment, or job, that the employee was required to perform. An appraisal involved reviewing how the employee performed his or her employment and so can be seen readily to fit into action taken "in respect of the employee's employment". Each of the instances in s 5A(2) was of a matter that was in respect of, but apart from, ordinary duties or tasks of the employee's employment or job itself. 64 The Bank's argument that the wording of s 5A(2)(e) was broad enough to comprehend the teleconferences and uses of customer surveys in them as being done in connection with the appraisal of managers such as Mr Reeve also fail. The customer surveys may have been obtained and provided to Mr Reeve in connection with a future appraisal of his performance. The issue that now arises is whether what was done was done in connection with (s 5A(2)(e)) reasonable administrative action that consisted of a reasonable appraisal (s 5A(2)(a)). The teleconferences and use in them of the customer surveys were actions not done in connection with any appraisal of the employee's performance; they were done as part of the ordinary course of Mr Reeve's employment and in appraising the performance of his branch. 65 The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1), involves the formation of a judgment as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, common sense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee's employment. 66 In Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 at 247, Doyle CJ with whom Prior and Williams JJ agreed, held that the ordinary meaning of the expression "administrative action" in an inexact analogue of s 5A(1), included a course of conduct or a general instruction by the employer or a general approach by the employer to a particular job or a particular situation. That analogue was in s 30(2a) of the Workers Rehabilitation and Compensation Act 1986 (SA) which provided: "A disability that consists of an illness or disorder of the mind caused by stress is compensable if and only if - (a) stress arising out of employment was a substantial cause of the disability; and (b) the stress did not arise wholly or predominantly from - (i) reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; (ii) a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with the worker's employment; or (iii) reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment." (emphasis added) 67 The Chief Justice observed that the expression in s 30(2a)(b)(iii) was not apt to embrace every instruction of, and action by, an employer. Rather, he said that the expression referred to: "… a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties." He concluded (65 SASR at 248), in respect of a mental injury of stress, that if the stress suffered by the employee: "… is caused simply by an inability to cope with the requirements of her work, by an inability to cope with the job itself, then the worker has shown that her stress does not arise from administrative action, whatever that expression might mean. I do not think it matters whether or not the worker was given a series of express instructions to perform her work." (emphasis added) 68 Doyle CJ observed (65 SASR at 248) that the expression "administrative action" in the South Australian legislation was probably intended to apply to decisions or actions taken by the employer that in some way related to the workings or functionings of the workplace, rather than the actual task performed by the worker. This decision is distinguishable because s 30(2a)(b) operated in three scenarios, including that of reasonable administrative action taken in a reasonable manner by the employer "in connection with the employee's employment. First, the expression "in connection with" was wider than "in respect of" as used in s 5A(1) of the Act. Secondly, the other two scenarios in s 30(2a)(b) had to be given distinct meanings from that in s 30(2a)(b)(iii). 69 The intention that we have discerned from the Parliament's use in s 5A(1) of "in respect of" is to provide a relational context for the administrative action taken and the employee's employment. It is to require that the action be specific to the employee's work or job so that the exclusion can operate harmoniously with the preceding portion of s 5A(1) rather than as eviscerative of it: see too Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255 at 273 [41], and see too [42], [44] per Keane JA with whom Fraser JA and White J agreed.

The secondary material 70 The Explanatory Memorandum gave a number of reasons for the amendment that replaced the definition of "injury" in s 4(1) with what became s 5A. One of these reasons were used by the Tribunal as an integral part of its construction of "reasonable administrative action". This was the following explanation of the objectives of the amendment: "It was the original intention of the legislation to ensure that there is a close connection to employment as the cause, aggravator or contributor of a worker's disease or injury, before eligibility for workers' compensation can be established. A further objective, through the exclusionary provisions, 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." (emphasis added) 71 The words we have emphasised above were the source of the Tribunal's construction of "administrative action" (see [45] above). The Explanatory Memorandum discussed three possible options that the Government considered in selecting the new definition of injury. The Explanatory Memorandum stated that it was desirable that the Act "… should prevent workers' compensation claims being used to obstruct legitimate administrative action undertaken in a reasonable manner" and that the wording of what became s 5A was broader, more comprehensively elaborated and covered a wider range of legitimate administrative actions than the existing definition. It went on to say that the exclusions in the new s 5A "will extend to all reasonable management activities" in lieu of the existing limitation of the exclusion in the old s 4(1) definition to reasonable disciplinary action taken against the employee or his or her failure to obtain a promotion, transfer or benefit in connection with his or her employment. 72 The task of statutory construction must begin with a consideration of the text of the provision or provisions being construed. If the meaning of the text is clear, then considerations of history and extrinsic materials cannot displace that meaning. This is because the intention of the legislature is most surely to be found in the words that it chose to use. Nonetheless, the meaning of the text, may require consideration of the context, including the general purpose and policy of the provision, and, in particular, any mischief that it seeks to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2011) 192 FCR 393 at 413 [96] per Rares J, Lander and Greenwood JJ agreeing. 73 Here, the purpose of s 5A was to broaden the exclusion of matters from the previous definition of "injury" so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee's employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1). 74 However, the Explanatory Memorandum did not suggest that "administrative action" was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression "administrative action in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not "administrative action".

Conclusion 75 The Tribunal erred in its construction of s 5A by limiting its scope to legitimate human resource management actions. It also failed to consider the possible application of s 5A(2)(e). However, the entitlement to relief is discretionary. Here, the question is whether any useful result could ensue from a grant of relief if the appeal were allowed and the matter remitted to the Tribunal for it to apply the correct construction of s 5A to the facts: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618-619 [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 76 We are of opinion that despite the Tribunal's errors in construing s 5A, no useful result could ensue from a remittal. The Tribunal's findings on the teleconferences, customer survey results and their uses would have been the same had it applied the exclusion as explained in these reasons. And, for the reasons we have given, the Tribunal's error in failing to consider s 5A(2)(e) made no difference because, had it correctly construed the Act, that provision did not have the consequence that the actions relied on by the Bank were taken "in respect of [Mr Reeve's] employment". The actions were or occurred as part of his employment: i.e. they were not actions taken in respect of it. We would dismiss the appeal and application. The Bank should pay Mr Reeve's costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares and Tracey.