1. Dr Byrnes provided Comcare with a quite detailed report dated 4 September 2007. In it, he expressed the opinion that Mrs Gilbert's condition was the,

"direct result of harassment in the workplace and the continued failure by her supervisors to recognize the fault in their actions."

1. Mrs Gilbert was seen by Dr Velimir Kovacevic, a consultant psychiatrist, on 10 August 2007. He diagnosed adjustment disorder with depressed and anxious mood. That condition, he said, was:

"related to employment factors, in particular emotional stress in adjusting to her new position precipitated by perceived hack of adequate training and negative and invalidating attitudes of senior staff members, whom she expected to be supportive and available."

1. Additionally, Mrs Gilbert was seen by Dr Hugh Daniel, also a consultant psychiatrist, on 16 July 2007 and 3 December 2007. Whilst these consultations were for the purpose of considering Mrs Gilbert's fitness for duty, Comcare placed some reliance upon Dr Daniel's report that Mrs Gilbert's "primary concern" was the issue of bullying and harassment and that the lack of training was a "secondary issue".
2. Dr Kovacevic provided a supplementary report of 14 August 2008 in which he addressed the issue of the contribution of employment to Mrs Gilbert's condition. He said:

"It is of course beyond my abilities to establish rights and wrongs in this matter. However, what I can state from a medical perspective is that reported psychiatric symptoms and difficulties would be consistent with what is recognised in psychiatric literature as an Adjustment Disorder with Depressed and Anxious Mood. This condition would not normally by considered as a 'mental illness' and the majority of the individuals recover completely and suffer no ongoing psychiatric impairment. A small proportion of people diagnosed with Adjustment Disorder continue to experience symptoms beyond three to six months. In most cases this is the result of ongoing stressors perpetuating the condition. Assessment of Ms Gilbert's mental state at the time of my examination and the knowledge of the natural course of this condition formed the basis for my conclusion that Ms Gilbert's employment had contributed to her condition in a significant yet transient manner.

There is a significant body of literature supporting the view that workplace bullying and harassment can lead to significant psychological morbidity. Perceived lack of training, support and supervision can have a significant impact on workers' perception of the workplace, her motivation, self-confidence and job satisfaction. Should Ms Gilbert's account of her work circumstances that precipitated her condition be accepted as valid (it is not within my capacity to establish that) then both, perceived bullying and harassment by supervisory staff as well as the perception that insufficient training was provided, could be considered to have significantly contributed to the condition.

Problems with morning tea break rosters constitute one of the further stressful issues although they may have contributed to the condition in a less significant manner compared with other two factors. However, establishing individual contributions of separate workplace incidents to a condition which is most likely the result of a cumulative effect of range of factors is an artificial exercise and there is no sound scientific basis for determining how much each of the individual factors contributed to the psychological injury. Although perhaps not entirely satisfactory, the only reasonable answer might be that all of the factors identified in my original report, which occurred within the same setting and within the same period of time, functioned by themselves and in combination to contribute to the outcome. Their relative importance as individual factors is difficult to assess objectively. Notwithstanding this, perceived bullying and lack of training would be considered as having the most significant impact."

1. In light of this unchallenged and uncontradicted evidence I conclude that the perceived bullying and lack of training each contributed significantly to the onset of Mrs Gilbert's condition.

1. The liability of Comcare to pay compensation is dependant upon there being an "injury". The term is defined in s 5A of the Act[1] as meaning:

(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."

1. In Hart v Comcare[2] the Full Court was concerned with the consequences of a finding by the Tribunal that the applicant's adjustment disorder had two concurrent causes, a failure to obtain promotion and events connected with the process of promotions. The definition of injury at that time excluded, amongst other things, diseases suffered as a result of failure to obtain promotion, in a manner similar to the exclusion in the present definition of diseases suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
2. Their Honours said:

"[20] The task is one of statutory construction. This is a beneficial statute. Nevertheless, conformably with that, it is necessary to construe the words used by the Parliament.

[21] The so-called proviso in the definition does not exclude causes. It provides that if a disease or[[3]] injury which would otherwise fall within the definition ('any such') is one which answers a description (relevantly here: 'suffered as a result of ... the failure to obtain a promotion'), the disease or injury is not an 'injury' as defined. The words are satisfied here. There was no debate that the factual findings made by the Tribunal amount to a conclusion that the disease or injury suffered was as a result of the failure to obtain the promotions.

[22] In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision's purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that inquiry.

[23] It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, may be a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion."

1. The first issue that falls to be decided is whether the events that Mrs Gilbert characterises as bullying and harassment constitute reasonable management action taken in a reasonable manner in respect of Mrs Gilbert's employment. It may then be necessary to consider the relevance of the complaint of a lack of training.

1. Mrs Gilbert complains of a series of interactions involving her supervisors that she contends amount to bullying and harassment.
2. The first incident of which she complains occurred on 1 February 2007. Her account of this event is as follows:

"Asked Senior Practitioner Narelle Rose whilst Social Worker Mia present what form or process for customer who requested Living Away From Home Allowance or Unreasonable To Live At Home Allowance. Senior Practitioner stated quite brusquely that I needed to 'erase that terminology' and then went back to what she had been doing. I didn't know what she was talking about and was quite taken aback as I don't know what it entails let alone the difference between the two."

1. The next incident also involved Ms Rose and occurred on 13 February 2007 when, according to Mrs Gilbert she was "questioned" by Ms Rose "about taking so long with a customer". This was said by Mrs Gilbert to have heightened her stress levels.
2. The taking of morning and afternoon teas also became a source of friction so far as Mrs Gilbert was concerned. The Centrelink office at Ipswich was, by all accounts, quite busy and there were obvious difficulties in scheduling breaks at consistent times. Initially a "buddy" system was used with one of two employees taking a break while the other remained on duty. That arrangement was altered in March 2007 to one where the Customer Liaison Officer coordinated the taking of breaks. It is instructive to consider Mrs Gilbert's views on this change in procedure:

"20.03.07 - There has been a lack of consistency in being told when to take morning and afternoon teas. Checked with TL Kelly who suggested I ask a TL if no-one has approached me by 9.45 am and 2.45 pm to confirm when morning and afternoon teas will be taken. I am disappointed I had to follow up with this as the new guidelines to be implemented on Monday 19.03.07 state that we need to adhere strictly to these. I have not been given the necessary SUPPORT to follow through with these new guidelines as I am relying on other staff eg: Customer Liaison Officer (CLO) to coordinate. If I was to try to be proactive I would probably be reprimanded as I may go when another 2 PCI staff are already on tea break."

1. The following week Mrs Gilbert again perceived difficulties with the morning tea roster. She recorded her view thus:

"27.03.07 - Did not have morning tea until 10.35 this morning; was waiting for direction from CLO Jacqui to clarify when to take (as she was designated staff member to coordinate breaks). She stated someone should have tapped me on the shoulder to alert my turn (which did not eventuate). I am concerned about process currently put in place not working as this has occurred several times for me. I am only trying to adhere to ground rules within WAP PCI that two CSA/PCI at a time only, being on break and need someone to let me know as busy with customer and queue not having time to co-ordinate who is on break and who not (keep eye on who is here and who isn't).

I would like it noted that I was sticking to the 'buddy' system and believed it was working well for myself and other staff member. Why therefore have the majority been blamed for the minority who may not have adhered to this protocol. I feel I am being disadvantaged now."

1. Ms Glenda Coates was Mrs Gilbert's team leader and immediate supervision at all material times. On 23 March 2007 she sat in with Mrs Gilbert as she undertook the task of dealing with customers. Ms Coates raised a concern about whether Mrs Gilbert was "over-servicing" customers, that is, taking too long to deal with the customer's needs. Mrs Gilbert recorded her response to that comment in these terms:

"Have concerns about being challenged about 'over-servicing' customers. TL Glenda sat in on PCI Participation Record (PR) and remarked that I was doing this. I am concerned my work is being scrutinised for 'poor workmanship', 'too slow' in processing and 'taking too long' in conducting PCI PR. I am concerned about not being given opportunity to continue providing what I believe to be 'good' customer service including meeting Customer Charter of Rights policy. I would like further clarification and DIRECTION on whether I implement the processing of all work as directed initially with PCI PF or just 'half do' as queue is growing."

1. Ms Sue Smith was another team leader. Mrs Gilbert complains of an occasion on 19 April 2007 when Ms Smith "challenged" her in a manner that Mrs Gilbert describes as "demeaning and disrespectful" as a consequence of a processing error made by Mrs Gilbert.
2. Mrs Gilbert was similarly offended and "made to feel inadequate and incompetent" by a comment made to her on 11 May 2007 by Ms Noelene Thomas, a "quoller"[4], in response to a request for assistance. Ms Thomas said,

"You've been on PCI [participation contact interviews] long enough to have known what you should have done."

Mrs Gilbert sent a lengthy email to Ms Coates after the incident in which she sought that Ms Coates take action in relation to her complaint.

1. The vexed issue of tea breaks arose again on 15 May 2007. Mrs Gilbert's note of the event reads as follows:

"Had an altercation/incident with TL's Sue Smith and Kelly Richardson regarding the correct protocol for taking morning and afternoon tea breaks, as there has been a continuing lack of co-ordination and understanding (for that matter) of what is currently put in place (CLO Jacqui alerting to when to take). Previously operating was the "buddy" system which was working well for me (I can't help it if other staff were abusing this as I took appropriate responsibility and should not have to wear the blame for their inability to carry out their responsibilities hence actions regarding the 'buddy system'). CSA Chris Stevens was present as she too wanted clarification. This is when TL Sue made the statement something like 'You should be adult enough to make decision/s yourself when Jacqui doesn't 'tap' you on the shoulder about when to take your tea break!' I found this extremely belittling and demeaning, the inference being that I was a child, unable to be proactive and make executive decision/s where and when required. I believe I have been a victim of workplace harassment and/or bullying ..." [emphasis in original]

Ms Smith's tone of voice was said by Mrs Gilbert in her evidence before me to have been "derogatory".

1. Next Mrs Gilbert complains of an incident with Ms Smith on 21 May 2007. On this occasion Mrs Gilbert had left her desk to seek assistance from another officer. When she had been away for some time Ms Smith approached Mrs Gilbert to ask if she has a problem with her customer. When Mrs Gilbert explained the situation Ms Smith said something along the lines of:

"You need to let me know when you are going to leave your work station"

"I believe this statement was made in a confronting and accusatory manner. I was obviously quite confused by this 'attack' as I have not been challenged, prior to this, about leaving my work station to gain assistance (as directed from Management to assist with 'on-the-job' training) from another staff member. In fact it has been encouraged to do so as this initiative assists in keeping the 'Walkins' down. I have not been informed of any changes to this process eg: the need to request permission to leave work station in order to access assistance. This incident yet again, left me in a state of utter confusion and bewilderment as the direction given was contradictory to what I believed was the protocol."

Mrs Gilbert says of this incident that she "was extremely embarrassed and again felt degraded and humiliated" by the way in which Ms Smith spoke to her.

1. With the exception of Ms Thomas, who I was told was unwell, I heard evidence from the other persons of whom Mrs Gilbert complains. There is, by and large, no dispute that statements generally along the lines spoken off by Mrs Gilbert were made. What is in issue is the manner in which the various statements were made.
2. Without intending any disrespect to Mrs Gilbert, it would appear from both her evidence and that given by her former colleagues that she may have had a somewhat uncooperative manner in the workplace. It is clear to me that she was extremely critical of many aspects of the practices of her workplace and decisions made by management regarding these practices. It is also clear that she was assertive in voicing these criticisms. It is not in dispute that she had difficulties in dealing with her role and workload. Mrs Gilbert was convinced that she was cognisant of the reasons behind her difficulties and repeatedly made this clear to those around her. Her focus on the perceived lack of "core training" seems to me to have caused her to act obstructively when receiving other training. Her claimed "state of utter confusion and bewilderment" at the "contradictory" direction as described in paragraph [28] above exemplifies this obstructive mindset. I cannot conceive how any reasonable employee could regard as confusing or bewildering a direction to ensure that a supervisor was aware where the employee was when away from the workspace. This attitude of obstruction meant that Mrs Gilbert was demanding of the time and patience of her colleagues, particularly that of her on-the-job trainers.
3. Perhaps as a consequence of the difficulties she felt she was facing, Mrs Gilbert seems to have been quite intolerant of criticism and affronted by advice whilst, at the same time, being hypercritical of others. I gained the distinct impression that Mrs Gilbert reacted badly to the move from PA to CSA and seemed determined to resist the change of her work environment from one where she was at liberty to spend a good deal of time with individual customers to one where she was permitted to spend only a limited time with each customer. It appears to me that Mrs Gilbert determined, whether consciously or subconsciously I do not know, to resist this change by resisting all endeavours to teach her the skills, and impart to her the knowledge, required by her new position. An indication of this reluctance to change appears from the fact that almost two years after the role of PA was abolished she continued using that description in her email signature.
4. On the other hand I found each of Ms Coates, Ms Richardson, Ms Smith and Ms Rose to be both rational and objective in their accounts of their dealings with Mrs Gilbert. I reject Mrs Gilbert's evidence of the manner in which her supervisors spoke to her. I am well satisfied that what was said to Mrs Gilbert by way of correction, and the way in which it was said, was objectively reasonable.
5. Mr Clark, counsel for Comcare, referred me to some of the jurisprudence concerning the expression "reasonable administrative action" in other jurisdictions. I have not found it necessary to resort to those decisions. The matters of which Mrs Gilbert complains quite clearly amount to one or more of a reasonable appraisal of performance, a reasonable counselling action or a reasonable disciplinary. Accordingly they answer the description of "reasonable administrative action" in s 5A(2) of the Act. Moreover, I accept the evidence of Ms Coates, Ms Smith and Ms Rose that there was nothing untoward about the way in which they spoke to Mrs Gilbert. I am satisfied that Mrs Gilbert was spoken to about her performance in a reasonable manner. I do not regard the fact that others, whether Centrelink employees or customers, were present when Mrs Gilbert was rebuked mildly and reasonably as detracting from my conclusion.
6. It follows that I am satisfied that one of the two major factors contributing to Mrs Gilbert's condition amounted to reasonable administrative action. Accordingly, and having regard to the conclusions of the Court in Hart v Comcare the condition suffered by Mrs Gilbert does not answer the description of injury in s 5A of the Act.
7. In these circumstances I need not determine whether the claimed shortcomings in Mrs Gilbert's training also answered that description.
8. In the result I would affirm the decision under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .....................Signed.................................................

[1] By virtue of s 41 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 this definition applies to ailment suffered on or after the date of Royal Assent being 12 April 2007. Mrs Gilbert first consulted a medical practitioner on 23 April 2007 and in accordance with s 7(4) of the Act this date is taken to have sustained an injury on this date.

[2] [2005] FCAFC 16; (2005) 145 FCR 29.

[3] The report uses the word "of" here but that seems plainly to be a typographical error.

[4] The official title is "quality checker".