(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. Section 5A(2) sets out a non-exhaustive list of examples of actions that constitute reasonable administrative action: performance appraisal, counselling, suspension and disciplinary actions and "anything reasonable done in connection with" those actions. It also includes 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. The only express limitation is that contained in s 5A(1) that the action be "in respect of the employee's employment".
2. In our view the ejusdem generis rule applies here. That is, statutory words will be read in their contexts and, as Professors Pearce and Geddes, the authors of Statutory Interpretation in Australia (6th ed), have expressed the rule, "general matters will be constrained by reference to specific matters."[1] The scope of the phrase "administrative action" was considered in some detail in Re Radulovic and Comcare [2010] AATA 777 at [74].

Accordingly the Tribunal considers that section 5A(2) does not extend to all forms of management action which may cause injury. To so interpret the provision could unduly stultify the underlying purpose or object of the Act, namely, to provide a 'scheme of rehabilitation and compensation for employees who are injured in the course of employment'] unless there has been intentional self-infliction of an injury, or serious or wilful misconduct. The Tribunal considers the preferable interpretation, as a matter of statutory construction, is to limit the provision to the examples listed to 'anything reasonable done in connection with' those examples and to other administrative action which falls within categories comparable to those listed. [footnotes omitted]

1. We agree with these comments. Section 5A does not extend to any managerial or administrative action even if taken in respect of the claimant's employment and reasonable.
2. We will now consider whether "the actions" on which NAB relies constitute "administrative action".
3. AOM meeting While there is a dispute as to precisely what happened it is common ground that during the meeting there was an exchange between Mr Daly and the applicant about the appropriateness of accepting resources "offered" by another team. The applicant believed that she was singled out for criticism; Mr Daly believed he did no more than urge her to consider accepting the resources on offer.
4. It is contended for NAB that this meeting constitutes an appraisal of the applicant's performance or counselling action in respect of her performance (ss 5A(2)(a) and 5A(2)(b)). Plainly the meeting as a whole could not be said to constitute action of that type "in respect of the applicant's employment". It will be recalled that it was a meeting of managers held to plan workloads and allocate resources within the Corporate Clients section. The only basis "the action" could be said to fall within the scope of the provision, is if it is limited to the exchange that took place between Mr Daly and the applicant.
5. On Mr Daly's account, managers were encouraged to actively participate in an exchange of information and opinions at the meeting. At its highest the applicant's evidence is that Mr Daly challenged her decision not to accept resources donated by others; they argued; she ultimately acquiesced. In our view it is something of a stretch to suggest that this exchange constituted an appraisal of the applicant's performance, informal counselling, something comparable or something done in relation to those actions. We are not satisfied that the exchange constitutes "administrative action...in respect of the applicant's employment".
6. Conduct of the administrative activities of the section: Counsel for NAB contends that Mr Daly's "ordering of the business of the section" constitutes administrative action. Counsel gave as examples Mr Daly's conduct of one-on-one meetings with the applicant and the AOM meetings she attended. We understand it is intended to refer to Mr Daly's management style and his ongoing interaction with the applicant. As is apparent the class of action as described is extremely broad in scope and somewhat nebulous.
7. As the Tribunal commented in Radulovic "administrative action" does not extend to management actions at large. It is limited to the examples listed in s 5A(2) and "anything reasonable done in connection with" those examples, and to other administrative action that falls within categories comparable to those listed. The action described by Counsel for NAB effectively catches all conduct by Mr Daly that relates to the applicant. In our view this class of conduct does not constitute administrative action.

1. Counsel for the applicant contends that the second meeting did not constitute reasonable administrative action because as Mr Daly was at pains to point out, he had intended that the meeting be nothing more than a casual chat and not a formal disciplinary or counselling session. Whatever he might have intended as things turned out in the course of the meeting, Mr Daly raised concerns about the applicant's performance and attitude and advised that things must change. That discussion in our constitutes an appraisal of the applicant's performance or a counselling action and falls within the scope of ss 5A(2)(a) and 5A(2)(b) of the definition of "administrative action".
2. There is conflicting evidence about whether as Mr Daly claims there were shortcomings in the applicant's performance or attitude. Whatever the truth might be, as one of her direct managers, it was not unreasonable that he raised his concerns with the applicant providing he had reasonable grounds for doing so. It follows that the meeting constituted "reasonable administrative action".

1. The real issue in our view is whether the second meeting was conducted in a reasonable manner. That requires us to make an objective assessment having regard to all relevant circumstances. Whether the impugned action was undertaken in a "reasonable manner" will depend on the circumstances and does not lend itself to a one-size fits all assessment. Mr Daly's motive in initiating the meeting while relevant is not determinative. Reasonableness is not to be assessed against the benchmark of "best practice" or by asking whether the subject action was beyond reproach.
2. The assessment of what was said at the meeting is made difficult given the conflicting evidence, the passage of time, the absence of independent evidence and the emotive quality of the discussions. Despite significant points of disagreement there is nonetheless some common ground about what was said at that meeting. First, immediately after the AOM meeting Mr Daly requested the applicant meet with him alone and did not foreshadow what he intended to discuss. Second, the meeting opened with Mr Daly accusing the applicant of being negative in the workplace and raising a number of performance issues. Third, he announced that if her performance and behaviour did not improve "we would need to progress this further" and he would "be left with few options". Fourth, the applicant raised the issues of retrenchment and her classification within the restructure. Fifth, Mr Daly said that unless matters improved the applicant was unlikely to succeed in obtaining alternative employment within NAB.
3. The only material points of difference about the content of those discussions are whether, as Mr Daly claimed, the applicant immediately responded to his opening comments about her negative attitude etc with the comment that she should have been retrenched in the recent restructure; whether, as she claimed, Mr Daly retorted, "you won't have the case" after she mentioned constructive dismissal; and, whether she had accused Mr Daly of bullying and harassment.
4. In our view the following considerations are relevant to an assessment of whether the meeting was undertaken "in a reasonable manner". First, as Mr Daly admits, in the eight weeks preceding the meeting he had become increasingly frustrated and annoyed with the applicant and saw the AOM meeting as being the "tipping point". While the applicant and Mr Daly gave different accounts of that meeting, both perceived it as having an undertone of tension: Mr Daly thought that the applicant had presented as especially negative and uncooperative; she thought she was singled out for criticism. We think it more probable than not that despite Mr Daly's self assessment that he managed to keep his emotions in check, he took his feelings of annoyance and frustration into the second meeting and they infected its tenor. Second, the relationship between the parties was in its infancy and as agreed far from robust. As such Mr Daly's feelings of annoyance and frustration were likely to be acutely perceived by the applicant. Third, the applicant was given no notice of what was to be discussed and was moved straight from the AOM meeting into another.
5. Mr Daly's decision to meet with the applicant on 5 June 2008 was a spur of the moment decision. We accept that he did not set out to formally counsel or discipline the applicant or, as she believes, to bully, threaten or intimidate her. However that she took the words, to which he admits using after criticising her performance - "we would need to progress this further" and "[he would] be left with few options" - as a veiled threat, is hardly surprising. The unavoidable inference to be drawn from those comments is that the applicant's employment was under threat unless matters improved. They illustrate that whatever Mr Daly's intention might have been for calling the meeting, it quickly transcended into something more than an informal chat. In our view Mr Daly's decision to initiate a meeting with a subordinate without notice about a matter of some consequence in circumstances where he felt annoyed and frustrated, was a serious error of judgement. While other factors no doubt contributed to the strength of the applicant's reaction, that she found the meeting distressing is not surprising in those circumstances. We are not satisfied that the action was taken in a reasonable manner.
6. In the interest of completeness it is necessary to deal with the submissions made by Counsel for NAB about the applicant's alleged disappointment at not being offered a retrenchment and her purported reclassification. As we understand it is suggested that both contributed to the applicant's condition and constituted reasonable administrative action.
7. There is no issue that retrenchment and reclassification were discussed at the meeting with Mr Daly. Nor is it disputed that the restructure of Corporate Clients occurred before Mr Daly arrived at NAB and that he played no role in any employment decisions relating to the restructure.
8. Retrenchment: Mr Daly and the applicant gave differing accounts about the circumstances in which the topic of retrenchment arose at the 5 June 2008 meeting. He claimed that after outlining his concerns about her performance and attitude, the applicant launched into an attack on NAB's decision not to offer her a retrenchment in the context of the restructure. In contrast, the applicant claims that after Mr Daly accused her of negativity and poor performance and said that he could not work with her (which is denied), she said "If you feel you cannot work with me and want me to leave then why am I not offered retrenchment?".
9. The applicant made no mention of retrenchment in the claim form lodged with NAB in October 2008. Nor was mention made of retrenchment in the notes made by NAB staff following the meeting with the applicant held after that claim was made when she was asked to outline her concerns. There is no direct evidence that the applicant was dissatisfied because she had not been offered a retrenchment and she strongly refuted that suggestion under cross-examination. The only evidence to suggest otherwise is the hearsay evidence given by Mr Daly and Ms Hall, which was to the effect that they heard rumours that the applicant had wanted to be retrenched. Ms Hall's statement that she understood following the restructure the applicant appeared happy to go into a Service Centre Manager role and had not said anything to her to indicate otherwise would appear to contradict those rumours.
10. We decline as invited by NAB, to draw an adverse inference from the applicant's failure to produce to the Tribunal the contemporary notes she claimed to have made following her meeting with Mr Daly. She gave a plausible explanation for her failure to produce those notes and furthermore impressed us a truthful witness. We prefer her account of the context in which the retrenchment comment arose during the 5 June meeting. It does not indicate as suggested that she bore a grudge towards NAB on account of not being offered a retrenchment but rather that if Mr Daly felt he could not work with her she ought at least be offered a retrenchment package. We are not persuaded that the applicant was dissatisfied with not being offered retrenchment following the restructure or that her condition was a "result of" not being made such an offer.
11. Reclassification: The applicant claims that she became concerned that her position had been downgraded as a consequence of the restructure when the person responsible for recruiting the second position for which she applied, told her that she might be unable to apply on account of her grade. That discussion took place about three weeks before the June meeting with Mr Daly. The applicant believed that before the restructure her position was a Grade 3 and that consistent with the information provided by NAB her grade was unchanged by the restructure. The applicant testified that after speaking to the recruitment officer she sought clarification from Ms Pillay who said she also understood that the position was a Grade 3 and shared her concern that perhaps her new role might not be comparable as had originally been thought. The applicant also claimed that Ms Pillay undertook to make further enquiries but the issue remained unresolved at the time of the June meeting.
12. It is not entirely clear to us what action NAB claims constitute "reasonable administrative action" in relation to the applicant's purported reclassification. It goes without saying that before it can be determined whether the applicant's condition was a result of "reasonable administrative action" it is necessary to identify with precision the relevant action.
13. It is to be observed that there is no evidence to suggest that the applicant "failed to retain a benefit" or had an expectation that she would be reclassified or promoted, as a consequence of the restructure. Her letter of appointment dated 6 February 2008 described her new position as a "directly comparable appointment [to her previous position of Customer Service Manager]".
14. In our view the relevant administrative action could not be said to be the decision(s) taken in relation to the applicant's grading or classification made consequent on the restructure, as the evidence does not support a finding that these represented a source of concern to the applicant. Her concern was triggered by the discussion with the recruitment officer and the lack of any formal response once she sought clarification about the issue from her managers. Even if assumed, that those acts separately or in combination, fall within the scope s 5A(2)(f) we do not think that they could be described as "reasonable". In our view providing inaccurate information about an employee's grade or failing to address an employee's legitimate concern in a timely manner once raised, do not constitute "reasonable administrative action".

1. The applicant suffered an injury within the meaning of the Act. The injury was not the result of reasonable administrative action taken in a reasonable manner. Accordingly NAB is liable to pay compensation in accordance with the Act. It follows that the decision under review must be set aside.

I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr J D Campbell

Signed: ..................[sgd]................................................

Date/s of Hearing 7-9 September 2010 and 6-7 December 2010

Solicitor for the Applicant Mr T Mithieux, Carroll & O'Dea Lawyers

Solicitor for the Respondent Ms K Miller, Sparke Helmore