Flinders Power Operating Services Pty Ltd (formerly NRG Flinders Operating Services Pty Ltd) v Amato [2007] SAWCT 33

"Some time last year, his immediate supervisor was promoted and a younger colleague of less experience than Daniele was placed in the supervisor's position. Since then Daniele has felt perpetually harassed by this man".

19 Mr Amato was asked some questions about that and in particular was asked:

Q. "Why did you tell Dr Dignam that you had been happy in your work until a time when a younger colleague of less experience than yourself was placed in a supervisor's position?

A. I wouldn't have said that. That would have been Dr Dignam's interpretation, but I did not say that."[3]

Q. "Likewise you have recorded that he told you in 2002 his immediate supervisor was promoted and a younger colleague of lesser experience than him was placed in the supervisor's position.

A.

Yes.

Q.

You obviously had a recollection of him telling you that.

21 The learned Deputy President was invited to consider Mr Amato's evidence about Mr Miller and whether Mr Miller had complained about his work performance. On several occasions Mr Amato denied that Mr Miller ever spoke to him about his work performance. This culminated in the following exchange:-

Q. "Sorry, did you say you never had any complaints from John Miller about your work input?

A. No.

Q. Do you want a moment to reflect about that Mr Amato?

...

A. The performance issue got raised in June 2003 - July 2003 I should say. Apart from that there was never any discussion about my performance."[5]

22 The learned Deputy President was invited to reflect upon this evidence in light of an extract from Mr Miller's diary that contained an entry on 8 January 2003 recording that Mr Miller spoke to Mr Amato about his performance at work with a notation that this discussion was the third serious discussion that he had had with him on that topic[6].

23 The learned Deputy President was then taken to some evidence from Mr Amato about the bugging of his telephone. In the course of his oral evidence Mr Amato stated that he had no idea who had bugged his phone. The learned Deputy President was asked to compare this with evidence from Dr Dignam to the effect that Mr Amato had told him that he suspected that it was NRG or insurance[7].

24 The learned Deputy President was taken to Mr Amato's evidence about a memorandum of 8 April 2003 that referred to mistakes being made in the workplace.

25 When asked about this, Mr Amato said that they were not directed to Mr Miller. This was then pursued.

"Q. It is obviously a criticism of Mr Miller, isn't it?

Q. Why did you say a moment ago that you were not sure who that was a criticism of?

A. Well, I hadn't read the specific paragraph."[8].

26 After taking the learned Deputy President to these and other passages of the evidence, NRG's counsel said:-

"I'm sorry to have occupied so much time but it was important for my client's case for Your Honour to appreciate that not only do you have a number of witnesses on one side of the equation presenting a different view of these various events from Mr Amato, but there is a real basis upon which Your Honour finds that his evidence is not a reliable basis for you to make findings of fact in this matter."[9]

27 NRG then identified what it regarded as the stressors comprising of disqualifying events that were the whole or predominant cause of Mr Amato's psychiatric disability.

28 The learned Deputy President was asked to reflect upon evidence suggesting that Mr Miller approached Mr Amato to speak to him while Mr Amato was on the telephone speaking in Italian. Mr Miller waited by his desk for some time feeling as if he had been ignored by Mr Amato and of a subsequent conversation that he had with Mr Amato enquiring of him why he was on the phone and what he was doing and what he was talking about.

29 It was contended that it was appropriate and reasonable for Mr Miller to have made these enquiries of Mr Amato and that Mr Miller's actions comprised of reasonable administrative action taken by NRG in connection with Mr Amato's employment.

30 The learned Deputy President was then asked to reflect upon another occasion when Mr Miller informed Mr Amato that he was not permitted to drink coffee or eat breakfast after 7.15 am at work.

31 It was contended that this satisfied the description of administrative action in relation to Mr Amato's employment and that it was reasonable for Mr Miller to have discussed this issue with him.

32 The learned Deputy President was then asked to reflect upon issues that had arisen between Mr Miller and Mr Amato over the responsibility of resolving problems with the cooling of unimeters, a type of thermometer that measures the temperature of pieces of the plant.

33 Plainly Mr Amato was upset that Mr Miller had not adopted his recommendations and advice.

34 NRG contended:-

"It is not the role of the Tribunal to be putting itself in the shoes of the employer and saying, well, the employer should have adopted the suggestions as to how to fix the problem with the unimeters being advocated by Mr Amato. ... The way in which the employer has acted, or the decision of the employer in that regard, is plainly administrative action in relation to the employment. ... There is no basis upon which the Tribunal would find it was not reasonable or not taken in a reasonable manner."[10]

35 The learned Deputy President was then asked to reflect upon a performance review that was to take place in early 2003, that Mr Amato refused to participate in.

36 NRG contended that Mr Amato was not required to participate in such a review and that if he did not wish to do so all he was required to do was to complete paperwork that was a requirement of the relevant enterprise bargaining agreement.

37 It was said:-

"He made a great issue of it. There is nothing, in my submission, which would lead the Tribunal to find other than this, again, constituted administrative action in connection with his employment. It was reasonable action taken in a reasonable manner." [11]

38 The learned Deputy President was asked to reflect upon an incident described as the voltage stick incident. Mr Miller had refused to authorise payment for a piece of equipment known as a voltage stick that Mr Amato had requested.

39 It was put to the learned Deputy President:-

"Whether he was provided with the voltage stick for the performance of his work was a decision that is properly categorised as administrative action in relation to his employment. The employer has reasons for not providing him with one. Mr Amato did not accept those reasons ... That's a decision for the employer and in deciding that the employer is taking administrative action. The decision is reasonable. It was taken in a reasonable manner."[12]

40 Finally, the learned Deputy President was taken to evidence concerning a meeting in October 2003 when Mr Amato requested Mr Miller to sign his diary to confirm that they had met and Mr Miller refused. It was said:-

"It wasn't for Mr Amato to be insisting that his supervisor had to sign his diary. ... Mr Amato seems to treat the refusal to sign his diary as a further example of the employer's persecution of him. Far from that, this was another example of the employer taking administrative action in declining to sign the diary, it was in connection with his employment, it was reasonable action, and it was taken in a reasonable manner."[13]

41 In dealing with conflicts in the evidence the learned Deputy President said:-

"I have preferred Mr Amato's recollection of events. I have accepted him as an honest witness. It is likely that the other witnesses' recall of events has been dulled by time and by the relevant lack of importance to them of some of the events that occurred."[14]

42 The learned Deputy President made reference to the incidents set out above in the course of her reasons. She did not, however, find it necessary to characterise these events for the purposes of s 30(A)(b) of the Act, or to reflect upon their relative significance as causes of Mr Amato's psychiatric condition. This was so because she concluded:-

_"_When the evidence of Dr Dignam is viewed in light of the history of the interaction between Mr Amato and Mr Miller, it is clear that the causative factor was not the process that the employer engaged in relation to counselling or disciplining Mr Amato but rather the personality conflict between Mr Amato and Mr Miller that remained unresolved.

I have accepted Mr Rossi's submission that the substantial cause of Mr Amato's disability was the personality clash or conflict between him and Mr Miller. I accept that the disability developed over the period from mid 2002 until June 2003. The two men had a poor relationship as was evident from their failure to properly communicate about matters relating to work such as the cooling for the unimeters. ...

In my view the personality conflict between Mr Amato and Mr Miller cannot be characterised as 'administrative action' as it falls outside 'the workings or functioning of the workplace'. If the interaction between the two men is broken down and that part of Mr Miller's conduct that caused Mr Amato's disorder is analysed it cannot be properly described as administrative action. I have accepted Mr Amato's evidence about the way Mr Miller treated him. It was Mr Miller's attitude and unfortunate manner in dealing with Mr Amato that was the source of the conflict."[15]

43 The evidence of Dr Dignam, to which the learned Deputy President referred, was evidence wherein Dr Dignam indicated Mr Amato's problems related to his relationship with his supervisor. A fair reading of her reasons suggest she was fortified in coming to that conclusion by Dr Ewer's statement in a report wherein he recommended the services of a mediator to address issues between Mr Miller and Mr Amato.

44 Various criticisms were made of the learned Deputy President's approach to this case, the findings that she made and of the adequacy of her reasons in respect of those findings.

45 In view of the fate of this appeal, it is not necessary or indeed desirable for me to canvass them all. There are, however, two particular matters to which I feel obliged to make reference. The first is that in the course of her reasons referred to in paragraph 42 above, the learned Deputy President expressed the view that the unresolved personality conflict between Mr Amato and Mr Miller which she found to be the substantial cause of the former's disability, could not be characterised as "administrative action" as it falls outside 'the workings or functioning of the workplace'. She went on to say that if "the interaction between the two men is broken down and that part of Mr Miller's conduct that caused Mr Amato's disorder is analysed, it cannot be properly described as administrative action".

It is clear from para 33 of her reasons for decision that in reaching the conclusion that administrative action played no role in the worker's disability, the learned Deputy President relied on the decision of Doyle CJ (with whom Prior and Williams JJ concurred) in WorkCover Corporation of South Australia v Summers[16] at 245 in which he referred to administrative actions as "decisions or actions by the employer which are in some way related to the functionings of the workplace rather than the active task performed by the worker".

However, the facts in Summers are far removed from the facts of the case at bar. In essence, the cause of the worker's stress disability in that case was her inability to "cope with a number of aspects of her employment, and that her inability to cope subjected her to stress".[17] In his decision the learned Chief Justice rejected the submission of counsel for the appellant that administrative action referred to "every instruction given by the employer or action taken by the employer which relates to the performance of the worker's duties, whether directly or indirectly" as "too sweeping".

In conclusion on the question the learned Chief Justice had this to say:-

"It is not easy to say just what Parliament had in mind in enacting subpar (ii). In my opinion it is not necessary in this case to attempt to define the scope of the subparagraph. It is sufficient to dispose of this case to say that if a worker shows that she suffers an illness or disorder of the mind caused by stress, and that stress 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. My conclusion is that stress caused by an inability to cope with the job itself, to put things simply, is not stress which arises wholly or predominantly from administrative action taken by the employer in connection with the worker's employment.

I reach this conclusion because I do not consider that Parliament intended to make the significant change to the Act which it would have made if "administrative action" had that meaning, and because I consider that the expression 'administrative action' is probably intended to apply to decisions or actions by the employer which are in some way related to the working functioning of the workplace, rather than to the actual task performed by the worker. I recognise, of course, that there will be a relationship between the two things.

I would leave for another day the question of identifying with any precision the action or conduct on the part of an employer which is administrative action for the purposes of s 30(2a)(b)(iii). My decision is simply that the present case does not fall within the expression 'administrative action'."

In my opinion Summers' case is very much one decided on its own facts. The learned Chief Justice makes it clear that no attempt was made to define the scope of the relevant paragraph and limited the decision to a finding that stress caused simply by an inability to cope with requirements of the work and by an inability to cope with the job itself was sufficient to show that the stress does not arise from administrative action. The learned Chief Justice left "for another day the question of identifying with any precision the action on the part of an employer which is administrative action for the purposes of s 30(2a)(b)(iii)."

In my respectful view in taking the course she did the learned Deputy President misapplied the decision in Summers. In particular, given the state of the evidence and in particular the worker's assertion that it was the various events canvassed in evidence that were causative of his disability, it was incumbent on the learned Deputy President to examine same, determine which if any were administrative or counselling in nature and if either reach decisions on their reasonableness and the question of their role (if any) in the causation of the disability.

Given that the learned Deputy President did not do so but rather was content to see the events as merely illustrative of "the problematic relationship between the two men" I am of the opinion that the learned Deputy President fell into error.

46 However that may be, in addition, in my view, the appeal must also be allowed for reasons similar to those that underpin the decision of the Full Bench in WorkCover/Royal & Sun Alliance (Adelaide Casino Pty Ltd) v Hunter[18].

47 There the Tribunal made reference to the judgment of Gray J speaking for the Full Court in _Papps v The Poli_ce [19]:-

"In my view the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed."

48 In Hunter the Full Bench also made reference for the need to test the adequacy of reasons by reference to the attributes of the fictitious bystander described by Kirby J in Johnson v Johnson[20] in determining whether or not justice has been seen to be done.

49 The learned Deputy President's expressed preference for Mr Amato's recollection contains no discussion of the complaints concerning Mr Amato's evidence of an appointment of a younger colleague and Dr Dignam's report. It would have been open for the learned Deputy President to conclude that Dr Dignam must have been mistaken because he did not make a contemporaneous note, but she made no such comment.

50 The learned Deputy President made no reference to the evidence concerning the alleged work performance meeting of 8 January 2003. She could have dismissed Mr Miller's diary note concerning that date on the basis of evidence that it was not recorded contemporaneously and therefore was potentially inaccurate. She made no reference to it.

51 NRG raised legitimate issues about Mr Amato's testimony concerning Mr Amato's memorandum of 8 April 2003 concerning the unimeter matter.[21] The learned Deputy President's reasons make no reference to it. Nor was there reference to the alleged meeting of 30 April 2003 about work performance. She could have found that the reference to that date in Mr Miller's diary was a mistake but there was no mention of it.

52 Although the learned Deputy President referred to Dr Dignam and Dr Ewer in connection with her conclusions that Mr Amato's difficulties with Mr Miller were primarily responsible for Mr Amato's disability, she made no mention of a submission or evidence referred to in support of that submission that all of the medical evidence suggested that the cause of Mr Amato's psychiatric condition was his response to Mr Miller's efforts to manage his work performance. It would have been open for the learned Deputy President to reject that submission. She could have said that she understood their evidence when viewed overall to indicate that the underlying problem was a personality conflict. Indeed she could have rejected their evidence altogether and reached her own conclusion based upon her findings of fact relating to the lay witnesses.

53 In Hunter v Transport Accident Commission and Anor [22] Nettle JA said:-

"...while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law."

54 Chernov JA elaborated upon this in Major Engineering Pty Ltd v Helios Electroheat Pty Ltd[23] . He said:-

1 "Even where the judge's reasons are logically structured, in the sense that they make it apparent how the judge reasoned to the impugned conclusion, the reasons may nevertheless be considered inadequate if they fail to deal with a key element of a party's case or to explain why critical evidence has been effectively rejected. For example, where parties have advanced competing reasons and analyses in respect of critical aspects of the case, as will often be the situation where the dispute involves expert evidence and technical matters, the reasons should address the claims that have been put forward and explain why one case is preferred over the other or why critical points have been resolved in the way that they have. This is but an instance of the rule that the basis of the decision must be apparent." (footnotes ommitted)

55 In my respectful opinion, applying these principles and the reasonable bystander test that was spoken of in Hunter, the learned Deputy President's failure to refer to many of the matters put to her by NRG in its submissions, as outlined above, creates a reasonable apprehension that she did not understand NRG's case.

56 The resolution of this case depended upon findings of credit, and depending upon those findings, the characterisation of various events and an assessment of their causative significance to the disability from which Mr Amato suffers. Although the conclusion reached by the learned Deputy President was one that was reasonably open, it was not the only conclusion that the evidence compelled. In my view, for justice to be seen to be done through the eyes of the hypothetical reasonable observer an analysis of the matters that had been put to the learned Deputy President by NRG was required. Because that did not occur the appeal must be allowed and there must be a new trial.

57 I would order accordingly.

McCouaig DP

58 The background facts of this appeal including the decision of the learned Deputy President are adequately summarised in the judgment of Cawthorne AUJ and I will not restate them.

59 On appeal, various criticisms were made of the learned Deputy President's approach to this case, of the findings that she made, or did not make, and of the inadequacy of her reasons in respect of those findings that she did make.

60 I have concluded that the appeal must be allowed on the grounds that the learned Deputy President erred in law:-

(a) in failing to provide adequate reasons so as to disclose the process of reasoning by which she determined the matter.

(b) in failing to identify the conduct of Mr Miller that she found to be the cause of the worker's psychiatric disorder

(c) in failing to give reasons for concluding that that conduct could not be properly described as administrative action

(d) in failing to give adequate reasons for concluding that a personality conflict between the worker and Mr Miller could not be characterized as administrative action

(e) in failing to give adequate reasons for finding that the worker's evidence of events in the workplace was to be preferred over that of the respondent's witnesses Miller, Phillips, Kemp and French.

61 In view of the fate of the appeal, I propose to confine my remarks to these matters.

62 A failure to provide adequate reasons may constitute an error of law: WorkCover Corporation/Royal & Sun Alliance Workers Compensation (SA) Ltd (Adelaide Casino Pty Ltd) v Hunter[24]; Lavers v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (R W Miller & Co)[25].

63 There is no definitive judicial yardstick for determining whether or not reasons are adequate for much will depend on the circumstances of the case.

64 The Full Supreme Court of South Australia in Lawson v Lee[26] at 446 said that the reasons must be "coherent, intelligible and comprehensive".

65 The reasons must also be adequate to allow an appellate court or tribunal to perform its function and they must be such that justice is seen to be done: Soulemezis v Dudley (Holdings) Pty Ltd[27]. Gray J in Sun Alliance Insurance Ltd v Massood[28] said at 18:-

"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if :- (a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or (b) justice is not seen to have been done. The two above-stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."

66 The principles with respect to the adequacy of reasons for decision were recently discussed by the Full Tribunal in Woolworths South Australia Pty Ltd v Deo[29]. The Full Tribunal there emphasised the need for the reasons to be considered as a whole and for a constructive approach to be taken in this regard, and the need to consider the reasons in the context of the complexity, or otherwise, of the issues involved.

67 Inadequate reasons do not necessarily imply an appealable error of law. As Meagher JA observed in Beale v Government Insurance Office of New South Wales[30] at 444:-

"It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine tooth comb would show up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered."

68 It has been said that the obligation of a trial judge is to provide an intelligible explanation of the process of reasoning that led the judge from the evidence to the findings and from the findings to the ultimate conclusion, and that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law: per Nettle JA in Hunter v Transport Accident Commission[31] and in R & D Vodusek Pty Ltd (t/a Vodusek Meats) v Evans[32].

69 The essence of the learned Deputy President's reasoning here, as indicated by her reasons, is that the substantial cause of the worker's mental disability was a personality conflict that arose between he and his supervisor Mr Miller over the period mid-2002 to June 2003 (paras 7, 30), and that this personality conflict could not be characterised as "administrative action" as it "falls outside 'the workings or functioning of the workplace'" (para 34). Further explanation was given in para 34 for this critical conclusion:-

"If the interaction between the two men is broken down and that part of Mr Miller's conduct that caused Mr Amato's disorder is analysed it cannot be properly described as administrative action. I have accepted Mr Amato's evidence about the way Mr Miller treated him. It was Mr Miller's attitude and unfortunate manner in dealing with Mr Amato that was the source of the conflict."

70 Paragraph 34 of the learned Deputy President's reasons implies that she firstly considered the workplace interactions between the worker and Mr Miller and then specifically analysed "that part of Mr Miller's conduct that caused Mr Amato's disorder", to reach the conclusion that "it" (presumably meaning "that part of Mr Miller's conduct that caused Mr Amato's disorder") could not be properly described as administrative action.

71 A difficulty for the reader of para 34 is that these processes are not disclosed, so that it is not known what interactions the learned Deputy President had regard to, nor what specific conduct of Mr Miller it was that she determined had caused the worker's disorder. Nor, importantly, is it apparent how that conduct was then analysed to enable the learned Deputy President to come to the conclusion that it could not be properly described as administrative action.

72 Even if it be presumed that the learned Deputy President was saying that the relevant part of Mr Miller's conduct was his "attitude and unfortunate manner in dealing with Mr Amato", then there needed to be findings made to illustrate this by reference to specific occasions, followed by at least some explanation of the learned Deputy President's analysis whereby she came to the conclusion that that could not be properly described as administrative action. The compensating authority's rejection of the claim and whole conduct of the trial was based on the proven facts requiring the opposite conclusion and there was a lot of evidence led on the matter.

73 In my respectful view, the bald assertion of her conclusion is insufficient, insufficient for the appellant to comprehend why it lost, insufficient for this appellate Tribunal to ascertain the reasoning upon which her conclusion was based and insufficient for justice to be seen to have been done.

74 In arguing the matter on appeal before us, Mr Rossi submitted that the learned Deputy President's findings in para 34 beyond that indicated in the first sentence were unnecessary and, by inference, should be ignored. I do not think that is possible. In reality, the findings expressed by the learned Deputy President in the subsequent sentences of para 34 at least purport to address the issues that were the focus of the judicial determination hearing.

75 Mr Rossi submitted that the learned Deputy President found that the cause of the worker's condition was a 'generalised' personality conflict between the worker and Mr Miller. The descriptive 'generalised' was regularly repeated by Mr Rossi in his submissions before us, for example, four times on tr p 62, but no number of repetitions by Mr Rossi can hide the fact that the learned Deputy President did not use the word at all in her judgment. Had she done so, an explanation as to what she meant by the term might well have been warranted.

76 Mr Rossi did not explain what he meant by the term 'generalised' personality conflict, and the meaning of the term is not apparent to me. Personalities do not conflict in a vacuum. To speak of a personality conflict between two people presumes some degree of interaction between them and evidence of consequent conflict.

77 Nor can Mr Rossi's adaptation of the learned Deputy President's finding hide the fact that the learned Deputy President clearly attributed the worker's mental disorder to the conduct of Mr Miller in the course of their workplace interactions.

78 It was not the worker's evidence, nor the evidence of his principal medical witness, the psychiatrist Dr Dignam, that the conflict between he and Mr Miller was no more than some 'generalised' personality conflict without reference to specific incidents.

79 Dr Dignam's report of 14 June 2006 summarised what he was told by the worker and what he believed was the cause of the worker's mental condition:-

"Opinion:

On the basis of the information provided to me by Daniel it appears to me that his employment by NRG Flinders is a substantial cause of his condition. The original trigger was perceived harassment by Mr Miller. Over the passage of time he has experienced a broader sense of betrayal by the organisation as a whole. I am clearly not in a position to know whether Daniel's treatment by Mr Miller was as he describes or whether aspects of that treatment represent appropriate supervisory or disciplinary action in the normal course of his work."

80 Dr Dignam had previously recorded the following history obtained from the worker:-

"Daniel has worked for his current employer at the power station for most of his life and until recently had always enjoyed his work, it had also been his sole source of social interaction. Some time last year [2002] his immediate supervisor was promoted and the younger colleague of less experience than Daniel was placed in the supervisor's position. Since then Daniel has felt perpetually harassed by this man, John Miller, who has been critical of everything that he does, he ridiculed him in front of his work mates and insisted on knowing about his private affairs. An attempt to address this within the company was unsuccessful and the meeting, which Daniel had thought was being called for the purposes of negotiation, turned into an unwitnessed and critical performance appraisal. On a subsequent occasion when called to a further meeting with management he approached a senior colleague friend to accompany him only to find the friend had been warned off and told not to get involved. After one of the meetings there was a temporary suasion (sic) from his supervisor but the harassment has gradually resumed and he feels powerless to do anything and offended by the unfair predicament in which he finds himself."

81 The worker's own evidence disclosed a history of specific incidents of such 'harassment' by Mr Miller. It was his evidence that "the psychiatric illness that I now suffer from is as a result of the events which occurred at work which I have set out in this statement." (worker's statement - para 75).

82 It was the worker's further evidence (statement para 77) that:-

"I am a private and reserved person by nature and I always tried to cope with feeling unwell and anxious at work by trying to hide my symptoms. I never wanted to be perceived as being "weak" and I tried my very best since 2002 to work with Mr Miller and to do my job. However, after months of being put down, harassed and bullied at work, I could no longer function at work or at home, as I was even losing enjoyment in my everyday activities. I still try to understand why Mr Miller harassed and bullied me when I was just trying to do my job."

"From mid-2004 I believe that the main obstacle to rehabilitating me back to work was the refusal of the employer to provide me with modified duties being duties under a supervisor different to Mr Miller. On 29th April 2004 the employer determined to reject my claim for compensation. As indicated by Mr Rosee in his letter to me dated 28th May 2004 the attitude of the employer thereafter was that I was to return to my normal work in my previous capacity and that duties under a different supervisor would not be provided to me. At that stage Mr Miller was still expected to be my supervisor if I returned to work."

83 It was conceded by the appellant at the judicial determination hearing that the worker's employment had been a substantial cause of his disability. What was in issue was whether his disability had arisen wholly or predominantly from reasonable administrative actions and, if so, whether those actions had been taken in a reasonable manner by the employer. This necessitated a close and critical examination of the half dozen or so occasions of alleged 'harassment' of the worker by Mr Miller and required findings to be made as to whether they constituted reasonable administrative action taken in a reasonable manner by the employer. This was what the dispute, and the hearing, was about and these matters required resolution.

84 The learned Deputy President did not do this, as acknowledged by Mr Rossi (tr 62).

85 Even if the learned Deputy President's problematic findings in para 34 of her reasons (beyond the first sentence) were to be ignored, as urged by Mr Rossi, there are difficulties with her first sentence and apparent reliance on some dicta of Doyle CJ in WorkCover Corporation of South Australia v Summers[33] at 247.

86 Summers did not involve a personality conflict and nor did Doyle CJ purport to identify with any precision the sort of action or conduct on the part of an employer that would constitute administrative action. He specifically said as much:-

"It is not easy to say just what Parliament had in mind in enacting subpar (iii). In my opinion it is not necessary in this case to attempt to define the scope of the subparagraph. It is sufficient to dispose of this case to say that if a worker shows that she suffers an illness or disorder of the mind caused by stress, and that stress 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. My conclusion is that stress caused by an inability to cope with the job itself, to put things simply, is not stress which arises wholly or predominantly from administrative action taken by the employer in connection with the worker's employment.

I reach this conclusion because I do not consider that Parliament intended to make the significant change to the Act which it would have made if 'administrative action' had that meaning, and because I consider that the expression 'administrative action' is probably intended to apply to decisions or actions by the employer which are in some way related to the workings or functioning of the workplace, rather than to the actual task performed by the worker. I recognise, of course, that there will be a relationship between the two things.

I would leave for another day the question of identifying with any precision the action or conduct on the part of an employer which is administrative action for the purposes of s 30(2a)(b)(iii). My decision is simply that the present case does not fall within the expression 'administrative action'."

87 For the learned Deputy President to simply assert that in her view a personality conflict between the worker and Mr Miller could not be characterised as administrative action because it falls outside 'the workings or functioning of the workplace' is, in my respectful view, quite insufficient.

88 As has been noted, personalities do not conflict in a vacuum. There was no suggestion that any of the interactions between the worker and Mr Miller occurred other than within the workplace and some of Mr Miller's actions clearly had a stronger relationship with the workings or functioning of the workplace than with the worker's actual duties. Indeed, most, if not all, of the illustrative examples cited by the learned Deputy President in para 8 of her reasons concern matters that might well be thought as having more to do with the workings or functioning of the workplace than with the worker's actual duties.

89 In these circumstances, the learned Deputy President's finding that the personality conflict between the worker and Mr Miller fell 'outside the workings or functioning of the workplace' required explanation. The question might fairly be posed, why did she so find when the evidence was that all of their interactions occurred within the workplace and when most of their interactions could conceivably be viewed as being more concerned with the workings or functioning of the workplace than with the worker's actual duties.

90 The learned Deputy President's use in combination of such ill-defined terms as 'personality conflict', 'administrative action' and 'the workings or functioning of the workplace' is reason enough itself why some explanation was required for this critical finding.

91 My concerns about this unexplained finding are only heightened when para 34 is read as a whole. There is, in my view, no reason to accord some findings any lesser status than others simply because that might suit a particular line of appellate argument. Reasons should be intelligible as they stand, without the need for deleting some to elicit a path of reasoning.

92 When the learned Deputy President's judgment is considered as a whole, it is not easy to ascertain the reasoning upon which her decision was based. Whilst it can be inferred that she conducted some sort of analysis of Mr Miller's conduct and interactions with the worker, no account is given of that analysis, so that the reader is left uninformed as to what conduct and interactions were considered and, more importantly, uninformed as to how her analysis led her to the conclusion that Mr Miller's conduct could not be described as administrative action. In my view, the learned Deputy President's failure to give adequate reasons for reaching the conclusion she did amounted to an appealable error of law.

93 The extent to which the learned Deputy President relied on her stated preference of the worker's evidence over that of Mr Miller, Mr Phillips, Mr Kemp and Mr French about "the events that occurred" and about "the way Mr Miller treated him" is unclear. As she noted, there were "a number of discrepancies about events that occurred."

94 If Mr Rossi's interpretation of the learned Deputy President's process of reasoning is correct it would not matter whose account of the various events was preferred as this would be irrelevant to any finding of what Mr Rossi termed a 'generalized' personality conflict. On all accounts there was patently disagreement and conflict between the two men on a lot of matters.

95 Nevertheless, the learned Deputy President's specific reference to her acceptance of the worker's evidence in para 34 of her reasons, in the context it appears, would suggest that she did see this as important in her analysis of the interactions between the worker and Mr Miller and in her concluding that it was Mr Miller's conduct that had caused the worker's condition.

96 Of concern to the appellant here, and it seems to me of legitimate concern, is the learned Deputy President's very cursory treatment of this issue of credibility/reliability with respect to the various witnesses' recounting of events.

97 The worker's credibility and reliability as a witness was made a major issue by the appellant at trial. The appellant's challenge was mounted not just in reliance on the evidence of witnesses that was contrary to the worker's account, but also by reference to discrepancies in the worker's account itself and discrepancies between the worker's account and

contemporaneous records made at the time of the relevant events. Cawthorne AUJ refers to some of these matters in his judgment and Mr Stanley QC canvassed others in his submissions before us.

98 The learned Deputy President's reasons do not address any of the many criticisms made of the worker's reliability as a witness. In my respectful view, given the importance of this issue and the manner in which the trial was conducted on both sides, it was necessary for the learned Deputy President to do this.

99 To simply say, as the learned Deputy President did, that she accepted the worker as an honest witness, and that "It is likely that the other witnesses' recall of events has been dulled by time and by the relative lack of importance to them of some of the events that occurred" amounted to no more than an assertion of satisfaction on undifferentiated evidence and that, as Kirby P pointed out in Soulemezis, is insufficient to discharge the judicial obligation.

100 The appeal should be allowed and the matter remitted for retrial.

Lieschke DP

101 NRG has raised two issues on appeal. The first is that the learned Deputy President had failed to give adequate or sufficient reasons for preferring Mr Amato's evidence over the evidence of the other lay witnesses. The second is that the learned Deputy President had adopted an incorrect approach to her consideration of the potentially disqualifying factors in s 30A(b).

102 I adopt the summary of facts and history set out by Auxiliary Judge Cawthorne.

103 I agree that the appeal must be upheld and the dispute remitted to another Deputy President for re-hearing. In my opinion the appeal succeeds only on the issue of inadequacy of reasons.

104 As DPJ Gilchrist and I said in Woolworths (South Australia) Pty Ltd v Deo[34]:-

"63 There is a general obligation upon a trier of fact to explain the basis upon which conclusions are reached. The cases recognise that it is not necessary for the trier of fact to refer to all of the evidence and that the adequacy of the reasons will depend upon the nature of the case and the importance of the particular issue. Where the evidence is conflicting and it relates to an issue fundamental to the resolution of the case, to be adequate, the reasons need to expose the basis upon which the issue is resolved and that in turn requires the trier of fact to: '... enter into and engage with that evidence and explain why a specific conclusion has been reached.' A failure to do this

'... may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal.' "

105 The authorities demonstrate that it is often a difficult judgment as to whether judicial reasons comply with this obligation.

106 In making this judgment a constructive approach is to be taken by the appellate tribunal of the trial judge's reasons.[35]

107 The learned Deputy President's impugned finding is contained in paragraph 5. Her Honour there accepted Mr Amato's recollection of events where there were discrepancies between his evidence and the evidence of Messrs Phillips, Kemp, French and Miller about events that had occurred. This finding goes beyond an acceptance of individual subjective perceptions, and extends to the occurrence of particular disputed events.

108 Her Honour then gave three reasons for this preference, after noting she had the opportunity to observe the witnesses. Firstly, that she accepted Mr Amato as an honest witness; secondly it was likely the other witnesses' recall of events has been dulled by time; and thirdly it was likely the other witnesses' recall of events has been dulled by a relevant lack of importance to them of some of the events.

109 While this is more than a stated preference for one witness over others, NRG says the reasoning does not sufficiently deal with critical conflicts in the evidence, which were not addressed or explained in the judgement.

110 In particular NRG pointed to discrepancies between Mr Amato's recollection of certain events and Mr Miller's oral evidence that was supported by entries in his diary. It submitted that Her Honour's reasoning could not apply to such discrepancies, as they could not be accurately described as only arising from a different recall of events, in turn subject to the diminishing effects of time and lack of importance.

111 It pointed to Mr Miller's diary note of 8 January 2003 of what was claimed to be a note of a counselling session of Mr Amato's performance held that day. The note also referred to two previous serious discussions about Mr Amato's performance. Mr Amato denied that any such discussions regarding his work performance had taken place.

112 Mr Amato also disputed the occurrence and substance of a discussion with Mr Miller on 30 April 2003. This occasion also corresponded with a diary entry by Mr Miller of that date. The diary entry records both men accusing each other of lying, criticism of Mr Amato's performance, and reference to him being placed on stage one of a disciplinary process.

113 Flinders Power also argued the learned Deputy President did not analyse the claimed discrepancy between Mr Amato's evidence and Dr Dignam's note of a complaint from Mr Amato of him feeling perpetually harassed following the appointment of a less experienced junior colleague to be his supervisor.

114 Finally it argued that a further inconsistency in Mr Amato's evidence as to the content of his own memo of 8 April 2003 was not referred to.

115 The context of the discrepancies between the witnesses' accounts includes Mr Amato suffering an incapacitating psychological disability with significant features of anxiety and depression[36] for at least three years before evidence was taken in September 2006. Accordingly the question of whether or not such a person has an honest belief in the accuracy of their own recall, may not be a reliable basis for resolving factual disputes. Honesty in this context is not the same as accuracy as a historian.

116 In my view the discrepancy as to whether a discussion regarding performance concerns, albeit not described as counselling, took place on 30 April and 8 January, and whether there had been prior similar discussions, was relevant to NRG's central contention that Mr Amato's disability was caused wholly or predominantly by reasonable administrative action and reasonable performance counselling.

117 In my view the stated reasons for preferring Mr Amato's recall do not address the alternate body of evidence and do not adequately explain why Mr Miller's evidence regarding these discussions was rejected.

118 The claimed discrepancy between Mr Amato's evidence and Dr Dignam's note regarding feeling harassed by Mr Miller, and the inconsistency in Mr Amato's evidence regarding his own memo of 8 April 2003, stand in a different and less important category. By inference the claimed discrepancy was not accepted. The inconsistency went to the weight and reliability of Mr Amato's evidence. Neither issue involved a direct conflict with other witnesses about events in the workplace. These two matters were not in my view of sufficient importance that demanded their analysis in the reasons. If they were the only matters not discussed the learned trial judge's reasons would not have been inadequate.

119 The appellant also complained of a lack of reasons as to why medical evidence from Dr Dignam and Dr Ewer was not accepted to the effect that Mr Amato's condition was due to his response to Mr Miller's reasonable efforts to manage his work performance. On my reading of the evidence the opinions of both Dr Dignam and Dr Ewer were not in accordance with this summary by NRG. There was evidence from both psychiatrists consistent with Her Honour's finding that the disability was caused by a personality conflict. Whether this was due to a poor attitude and unfortunate manner of Mr Miller was a question of fact that neither doctor was in a position to pass judgement on. This is borne out for example by Dr Dignam's report of Mr Amato feeling harassed by Mr Miller, and by his observation of Mr Amato's vulnerability through inability to deal with interpersonal friction.[37] Dr Ewer suggested there should be mediation to address communication issues between Mr Miller and Mr Amato.

120 This finding is also supported by the evidence of Mr Kemp, who was Human Resources Manager of the Port Augusta Power Station. His evidence included that in July 2003 he was "... attempting to resolve an issue, a conflict between people".[38]

121 In my view this complaint is essentially about a finding of fact that was properly open on the evidence. An appeal can only be on a question of law. I reject this argument.

122 NRG's second argument as to misapplication of s 30A(b) must be understood in the context of the reasons for decision.

123 Having accepted Mr Amato's evidence Her Honour found that the psychological disability was caused by a personality clash between Mr Amato and Mr Miller. Mr Amato was said to have had a well-founded belief that Mr Miller blamed him for inaction on Mr Miller's part in relation to certain work activities. It was said their relationship suffered from a poor level of communication, mutual mistrust and that it was a problematic relationship. Some of this was effectively conceded by Mr Miller. His evidence included: a standoff in communication regarding certain work tasks; a mutual lack of cooperation; suggesting he could arrange Mr Amato's demotion to a tradesman in response to Mr Amato's request for a volt stick;[39] he had a rethink of how he was dealing with issues to make things more comfortable for those concerned;[40] and he refused what he agreed was a reasonable request to sign Mr Amato's diary entries of recorded work duties.[41]

124 The learned Deputy President then went on to consider the cause of the interpersonal conflict. In doing so she appears to have been mindful of the underlying issue namely whether the disability producing conflict was due to Mr Amato's resentment of or reaction to being subjected to performance counselling together with being dissatisfied with a number of administrative decisions in relation to his work environment. I agree that if Her Honour left her analysis at the level of finding that the disability was caused by a personality conflict it would not fully address the issues. The cause however was found to be Mr Miller's attitude and unfortunate manner in dealing with Mr Amato. By necessary inference this excludes the cause of the conflict being Mr Amato's resentment or dysfunctional response to reasonable performance counselling and/or administrative actions. These findings were open on the evidence and would be unassailable, had the reasons in relation to preferring Mr Amato's evidence been adequate.

125 In my view such an approach is consistent with the reasoning of the Chief Justice in WorkCover Corporation of South Australia v Summers.[42] The inability of a worker to psychologically cope with an attitude and unfortunate manner of another worker is analogous to a worker being unable to cope with a feature or aspect of the work environment in which a work task is done, rather than a feature or aspect of a decision relating to the working or functioning of the workplace.[43]

126 A personality conflict between two workers where neither has authority to determine or implement administrative actions or counsel the other, could not be solely analysed in terms of administrative action. A finding that a psychological disability was caused by such interpersonal conflict would not be controversial. The only difference in this case is that the other party to the conflict was in a supervisory role, giving rise to the possibility the conflict may be due to reasonable performance counselling and administrative actions taken in a reasonable manner.

127 In the context of the current dispute and the finding as to the cause of the conflict, there was no need to separately analyse each and every point of disagreement or conflict and consider how it fitted within the exclusionary criteria. The events listed in para 8 as illustrations of the problematic relationship indicate they had been considered and rejected as potential causes.

128 Finally I note that the finding of Mr Amato's disability being caused by Mr Miller's attitude and unfortunate manner, is similar to a finding that the disability was caused by an unreasonable manner of Mr Miller's in dealing with him. If that had been the finding it would not matter whether the subject of Mr Miller's actions were reasonable administrative action, reasonable counselling action, or neither. This is because all reasonable actions must also be carried out in a reasonable manner before they satisfy the exclusionary criteria. I only say similar because unfortunate manner is not the same as unreasonable manner and the reference to attitude is unqualified, although negativity of attitude is implied.

129 The appeal is allowed and the dispute is to be re-heard.

[14] [2006] SAWCT 100 at para 5.

[15] [2006] SAWCT 100 at paras 29, 30 and 34.

[16] (1995) 65 SASR 243 at p245.

[17] (1995) 65 SASR 245.

[18] [2003] SAWCT 63.

[19] [2000] SASC 183; [2000] 77 SASR 210 at 218-9.

[20] [2000] HCA 48; [2000] 201 CLR 488.

[22] [2005] VSCA 1 at paras 21-2.

[23] [2006] VSCA 107 at para 18.

[24] [2003] SAWCT 63

[25] [2004] SAWCT 44

[26] (1978) 19 SASR 442

[27] (1987) 10 NSWLR 247

[28] [1989] VicRp 2; 1989 VR 8

[29] [2007] SAWCT 12

[30] (1997) 48 NSWLR 430

[31] [2005] VSCA 1 (10 February 2005)

[32] [2007] VSCA 53 (29 March 2007)

[33] (1995) 65 SASR 243

[34] [2007] SAWCT 12 para 63

[35] Smiths Snackfood Company Ltd v. Zienkiewicz [2002] SAWCT 48

[36] See Dr Dignam p 472 AB, Dr Ewer p 489 AB

[42] 1995 (65 SASR 243)

[43] See also WorkCover (Sebel Furniture Ltd) v Hickman [1997] SAWCT 17 for similar result