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.