Dunkerley v Comcare

THE COURT: 1 This appeal has its origins in 2009 in the short listing of the appellant, Ms Dunkerley, as an applicant for a more senior position within the Australian Public Service (APS) and in the feedback provided to her by the Chair of the relevant Selection Advisory Committee (SAC), Mr Schwager in relation to why her application for the position had not been successful. 2 Before the Administrative Appeals Tribunal (Tribunal), the first respondent (respondent), Comcare conceded and the Tribunal found properly conceded, that, as a consequence of these events, Ms Dunkerley had suffered an aggravation of her earlier, accepted compensable condition of an adjustment disorder. However, the Tribunal decided to affirm the decision of the respondent (Dunkerley and Comcare [2010] AATA 915), Comcare to deny liability in respect of Ms Dunkerley's workers' compensation claim under the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRA) in respect of this aggravation of that accepted "injury". This was because the Tribunal, as had Comcare before it, concluded that the aggravation was suffered by her as a result of reasonable administrative action taken in a reasonable manner in respect of her employment and thus could not constitute an "injury" as defined by s 5A(1) of the SRA by reason of the exclusionary proviso in that definition. 3 Ms Dunkerley appealed under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to this Court in its original jurisdiction against the Tribunal's decision (Dunkerley v Administrative Appeals Tribunal [2012] FCA 41). The questions of law which she came to agitate on that appeal centred around whether the Tribunal had either failed to take account of what was asserted by Ms Dunkerley to be a relevant consideration namely, a departmental policy statement in respect of Recruitment, Selection and Engagement (the policy) or, alternatively, had misconstrued the effect of that policy either in relation to the terms of her employment or with respect to the meaning and effect in the circumstances of the expression "principles of merit, equity and procedural fairness" in the policy. 4 Though put in various ways, the essence of Ms Dunkerley's case below was that the action taken in short listing her for the position which she sought and in later giving her feedback could not constitute "reasonable administrative action" in terms of s 5A(1) of the SRA because it was unlawful. That was because the policy was legally binding on the SAC and Mr Schwager in particular and had been breached. The breach which she asserted was that she ought never to have been shortlisted. 5 The Tribunal had opined that the policy had no binding legal force. The learned primary judge observed of Ms Dunkerley's challenge to this that it lacked utility unless another, earlier conclusion of the Tribunal namely, that the policy had not been breached, was incorrect. His Honour concluded that there had been no breach of the policy, including no breach grounded in a misapprehension by the Tribunal as to the meaning of the expression "principles of merit, equity and procedural fairness". Accordingly, the primary judge concluded that it was unnecessary to answer the question as to whether or not the policy was lawful. That was because, even if, contrary to the Tribunal's conclusion, the policy were legally binding, that policy had been correctly construed by the Tribunal and the Tribunal had found as a fact that, as so construed, it had been followed. His Honour therefore dismissed the appeal. 6 Ms Dunkerley's appeal grounds are cast in a discursive, narrative style which manifests a misunderstanding on her part as to the nature of the jurisdiction exercised by the primary judge. She refers in the notice to a review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It was not though the Court's judicial review jurisdiction under that Act which she invoked but rather that of answering in the Court's original jurisdiction in what is called by s 44 of the AAT Act an "appeal" the questions of law which form the subject matter of such a proceeding. 7 This misunderstanding aside and reading the notice as a whole, Ms Dunkerley's challenge to the judgment below is, seemingly, that it was impermissible for his Honour to have approached the determination of the s 44 "appeal" on the basis that it was unnecessary to answer whether the policy was legally binding on the SAC. This was because, had the Court addressed this question, the Court would have found that the Tribunal had misconstrued a policy that was legally binding on it in the Tribunal's conclusion that the policy "included a considerable degree of flexibility" and thus erred in further concluding that the SAC had "complied sufficiently with it". Inferentially, the corollary to this ground was that the Tribunal had been obliged to conclude that her injury was not the result of reasonable administrative action and that, by not answering the question, the primary judge had failed to appreciate this error on the Tribunal's part. 8 Further consideration of the merits of the appeal against the judgment below requires some elaboration by us of the facts found by the Tribunal, of the policy and of the terms of s 5A of the SRA. 9 In summary and materially, the Tribunal made the following findings of fact. 10 In June 2009, Mr Schwager was appointed to chair a selection advisory committee in respect of several Executive Level 1 (EL 1) positions in the Department of Education, Science and Training (Department). Mr Schwager was familiar with Dunkerley's work as in 2008 she had worked closely with him, albeit not as an immediate subordinate, on a project which the then Prime Minister had requested that the Department undertake within a short time frame. He had been impressed with her ability to work under pressure, her commitment and her positive attitude. He had not had regular contact with her in the workplace since then. Mr Schwager was unaware that Ms Dunkerley had any previous, compensable psychological injury. 11 There were 35 applicants for the EL 1 positions of whom 17 were short listed. Ms Dunkerley was one of those short listed. Even though her job application was not of the same standard as others short listed, Mr Schwager, drawing upon his knowledge of the qualities which she had exhibited on the project, persuaded the other two members of the SAC to include her in the short list. Referees were not contacted as part of the short listing process. In the result, Ms Dunkerley did not perform well either at the selection interview or in a related selection test. She was unsuccessful in securing an EL 1 position. 12 In his capacity as the Chair of the SAC, Mr Schwager gave Ms Dunkerley some feedback about why her application had been unsuccessful at an interview in his office on 17 July 2009. That interview had the following features: (a) Mr Schwager's practice in providing feedback was to be honest with unsuccessful candidates. (b) Mr Schwager used the terms 'charitable' and 'the benefit of the doubt' in the course of describing how Ms Dunkerley had come to be short listed. (c) Mr Schwager's intention in using these terms was to indicate that he genuinely believed from his experience of working with Ms Dunkerley that she deserved an interview. He had no intention of being patronising or demeaning in his assessment. (d) Mr Schwager was a busy manager who had to give feedback to nine applicants who had been unsuccessful. (e) Mr Schwager had no knowledge of Ms Dunkerley's sensitivities. (f) It was of about 5 minutes duration. (g) Mr Schwager otherwise covered noted items in respect of Ms Dunkerley on a pro forma "Comparative Assessment" document used for the purpose of determining the relative merits of short listed applicants. 13 On the Monday immediately following this interview, Ms Dunkerley sent an email in the following terms to the Department's Human Resources Manager: I was unsuccessful in the EL 1 promotion round. I was told at the post interview feedback that I was never a contender as my application was invalid. I was advised that the addressal (sic) of the selection criteria with examples not from my current duties was not acceptable. I was only allowed to participate in the interview process out of charity. I found out on Friday, but was too humiliated to email you. I should have been told this at the outset, and offered a chance to practice my interview skills (which I would have declined on the grounds that I believe my application did not receive fair treatment, and I would achieve nothing except further embarrassment and humiliation). I apologise for wasting your time, however, the information you gave me was very useful. I feel destroyed, because I feel I was set up to be part of a sadistic prank. I will be organising a session with a psychologist, and going to my doctor tomorrow to get extended sick leave. I am too intimidated to discuss any of this with my supervisor in the workplace because I just don't understand the rules of engagement. 14 The following day, Tuesday, 21 July 2009, Ms Dunkerley obtained a medical certificate from a general practitioner in which it was stated that she had suffered an adjustment disorder that was substantially contributed to by her employment. That practitioner certified her as being unfit for work from 20 July 2009 to 31 August 2009. On 1 September 2009, she lodged a claim for compensation under the SRA for an 'aggravation to adjustment disorder with anxious mood', which she alleged she had first noticed on 20 July 2009 and for which she first sought treatment on 21 July 2009. It was Comcare's denial of liability in respect of that claim that came to be affirmed by the Tribunal on review. 15 On the basis of these findings of fact, the Tribunal concluded that the manner in which feedback was provided to Ms Dunkerley was not unreasonable with the result described at the outset of these reasons. 16 As extracted by the primary judge, the policy included the following statements: • Employment decisions are based on merit with reference to the APS Values contained in s 10(1) and 10(2) of the Public Service Act. • Selection will be free from patronage, favouritism, or discrimination. • The best person for the job will be selected from a field of suitable candidates. • The selection process would be 'based on principles of merit, equity and procedural fairness'. 17 From Part 3 of the policy, which is directed to "The Selection Process", his Honour also extracted what he regarded as the following material statements in Part 3.7, which is deals with "The Assessment Procedures": The following processes are available to assess the relative merits of applicants. It is important to document the process used to select a successful applicant: • establish a short list of applicants with very strong claims to the position. • finalise shortlist after contacting referees, those applicants remaining will be seen as being in close contention for selection to the position. (An alternative here is to have only applicants listed for interview provide referee reports). • finalise selection by: □ making an assessment based on application and referee input alone; and/or □ conducting interviews; and/or □ examining work samples; and/or □ conducting performance tests (written and/or practical); and/or □ other forms of appropriate assessment. 18 Having regard to the course of submissions on the appeal, to these extracts from Part 3 of the policy might be added the following, additional excerpts: 3.8 Shortlisting • The purpose of shortlisting is to decide, based on the applications, referee reports and, if relevant, discussion with referees, which candidates will be considered further. • Only those candidates with very strong claims to the position should be shortlisted for interview. • The method of short listing and final assessment is a matter for each SAC to determine. … 3.10 Documenting the Outcome … For those interviewees who are not assessed as suitable, a relevant note stating the primary reason should be on their individual assessment as sufficient documentation of this outcome. All applicants have a right to seek feedback about how they went in the selection process, as such, the SAC must retain sufficient information to provide feedback and/or counselling to all candidates. … [Emphasis added] 19 Section 5A of the SRA defines "injury" in the following way: 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. [Original emphasis] 20 The passage which we have emphasised in the extracts from the policy underscores why it is that there is no merit in Ms Dunkerley's appeal. As a matter of ordinary English, the statement that, "The method of short listing and final assessment is a matter for each SAC to determine" means that how a SAC goes about the shortlisting of applicants is ultimately a matter for the collective, discretionary value judgment of the members of a particular SAC. Neither the Tribunal nor the primary judge made any error in characterising the procedure which a SAC might adopt in candidate selection as flexible. 21 That is so even if one accepts, as Ms Dunkerley submitted that we should, that the policy must be read subject to the "APS values" as defined by s 10 of the Public Service Act 1999 (Cth) (Public Service Act) and the synopsis of those values as set out in the extracted statement from the policy which refers to that provision. That is also so, even if, as Ms Dunkerley further submitted that we should accept, the selection process, including the shortlisting of candidates, was subject to the APS code of conduct set out in s 13 of the Public Service Act. 22 Sections 10 and 13 of the Public Service Act provide as follows: 10 APS Values (1) The APS Values are as follows: (a) the APS is apolitical, performing its functions in an impartial and professional manner; (b) the APS is a public service in which employment decisions are based on merit; (c) the APS provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community it serves; (d) the APS has the highest ethical standards; (e) the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public; (f) the APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs; (g) the APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public; (h) the APS has leadership of the highest quality; (i) the APS establishes workplace relations that value communication, consultation, co-operation and input from employees on matters that affect their workplace; (j) the APS provides a fair, flexible, safe and rewarding workplace; (k) the APS focuses on achieving results and managing performance; (l) the APS promotes equity in employment; (m) the APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment; (n) the APS is a career-based service to enhance the effectiveness and cohesion of Australia's democratic system of government; (o) the APS provides a fair system of review of decisions taken in respect of APS employees. (2) For the purposes of paragraph (1)(b), a decision relating to engagement or promotion is based on merit if: (a) an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process; and (b) the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required for the duties; and (c) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and (d) the assessment is the primary consideration in making the decision. 13 The APS Code of Conduct (1) An APS employee must behave honestly and with integrity in the course of APS employment. (2) An APS employee must act with care and diligence in the course of APS employment. (3) An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment. (4) An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means: (a) any Act (including this Act), or any instrument made under an Act; or (b) any law of a State or Territory, including any instrument made under such a law. (5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction. (6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff. (7) An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment. (8) An APS employee must use Commonwealth resources in a proper manner. (9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment. (10) An APS employee must not make improper use of: (a) inside information; or (b) the employee's duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person. (11) An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS. (12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia. (13) An APS employee must comply with any other conduct requirement that is prescribed by the regulations. [Original emphasis] 23 The relevant passage from the Tribunal's reasons, in which the primary judge detected no error was this: 43. … The requirement that the procedures relating to the selection process should be based on 'principles of merit, equity and procedural fairness' permit a degree of latitude. Ms Dunkerley did not address the notion of 'equity'. The meaning of that term as taken from the Macquarie Dictionary is: '1. the quality of being fair or impartial; fairness; impartiality; 2. that which is fair and just'. 44. Since fairness and objectivity (that is, impartiality) are referred to separately in section 10(1)(b), it is the second of those dictionary meanings of 'equity' that is the most apt. For a decision to be 'just' invokes notions of giving a person what they deserve. To be fair and just permits the decision-maker to take into account matters other than those criteria listed as relevant to a process or a position, including personal knowledge by the members of a selection committee of an applicant's ability. [Original emphasis] 24 Mr Schwager would have been less than fair to Ms Dunkerley if, knowing that she did have particular strengths which at least warranted her consideration, he did not highlight those to his fellow SAC members when deciding whom to short list even though that entailed an element of giving her the benefit of a doubt otherwise present having regard to her application. The flexibility inherent in the policy permitted this. He was at that stage of the selection process entitled to look beyond form to his knowledge or at least apprehension of substance so far as Ms Dunkerley was concerned. There is no finding of fact by the Tribunal that, in so doing, he was either advocating that she ought to be appointed or closing his mind to the relative merits of other applicants, only suggesting, based on his knowledge of her, that she was worthy of consideration. Self evidently, his fellow SAC members agreed with him. As it happened, when given the same opportunity as others shortlisted to demonstrate that she met the selection criteria, it proved that others had greater relative suitability for the available EL 1 positions than did Ms Dunkerley. 25 The policy provides for a decision-making process that is compliant with s 10(1)(b) of the Public Service Act, as that provision is amplified by s 10(2). On the findings of fact which the Tribunal made, that is what occurred here. 26 Whether or not the SAC was lawfully bound to follow the policy, the Tribunal found that it did in fact follow that policy. In so doing, the Tribunal did not misconstrue that policy. It was truly unnecessary for the primary judge to answer a question as to whether or not the policy was legally binding. 27 Even if then one regards the counselling of Ms Dunkerley as part of a continuum of administrative action which commenced upon her applying for the positions, continued through her shortlisting, interview and related testing and concluded with her feedback session with Mr Schwager, the Tribunal was entitled to find and did that the action which had occurred was reasonable. In so doing, the Tribunal made no error in concluding that the SAC had adhered to the policy. The conclusion that Ms Dunkerley had not suffered an "injury" as defined because of the application of the proviso then followed inexorably from the findings of fact which it made. 28 It follows that the appeal must be dismissed. Comcare sought its costs in respect of the appeal. There is no reason why costs ought not to follow the event. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lander, Logan and Barker.