The case before the Tribunal
15 The first action, by which a claim was made for anxiety and hypertension arising from reading an email which implied that Ms Ringshaug would not be able to resume mixed work, was considered by the Tribunal to give rise to two issues:
(1) whether she had suffered an ailment, being a mental condition outside the boundaries of normal mental functioning and behaviour; and
(2) if so, whether it occurred as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.
16 Comcare accepted that if Ms Ringshaug's psychological condition was an ailment for the purposes of the Act, it was contributed to, to a significant degree, by her employment. However, Comcare did not concede that it was such an ailment.
17 The Tribunal regarded the joint position of the parties before it as being that the failure of Ms Ringshaug's first action would lead inevitably to failure of the second action. At the hearing of this appeal, counsel for Ms Ringshaug took issue with the nature and extent of the concession made before the Tribunal. This issue is addressed more fully below at [26]. It should be noted in that regard that the evidence that was accepted by the Tribunal was to the effect that there was no physical cause of the injuries claimed in the second action, but rather that they were all psychological in nature, derived wholly or substantially from the asserted fears of re-injury arising from being required to do full-time scheduling work. In other words, the second action was based on an asserted injury that was essentially or substantially psychosomatic in nature, largely or entirely derived from fears arising from the circumstances giving rise to the first action.
18 The Tribunal carefully considered the medical evidence before it, describing the psychiatric evidence on Ms Ringshaug's mental state in May 2013 as conflicting and inconclusive. On balance, the Tribunal did not find that her condition, then or later, was of such clinical significance as to place it within the ambit of an injury or disease under the Act. Although her condition was clearly contributed to, to a significant degree, by her employment, it was not a condition that was compensable.
19 The Tribunal applied what it regarded as the concession that failure on the first action would lead to failure on the second action.
20 The Tribunal only turned to the question of reasonable administrative action in the alternative, in case it was wrong in finding that Ms Ringshaug did not suffer an injury or disease within the ambit of the Act. That is, if Ms Ringshaug did suffer an ailment, the question was whether it was nonetheless excluded as being the product of reasonable administrative action taken in a reasonable manner in relation to her employment. In considering that question, the Tribunal considered that any such ailment was attributable to more than simply reading the email which informed her that a return to mixed work would not take place and that the physical reaction to the email is best viewed as a combination of a series of workplace actions that impacted upon Ms Ringshaug. The Tribunal noted that those asserted workplaces actions likely included:
(1) prior to the email, being informed that she could not work in both roles due to a conflict of interest;
(2) a meeting in which Ms White was said to have thrown a roster at her;
(3) communications regarding various iterations of the roster in which her preferences were not fully upheld;
(4) a meeting in relation to her future role in roster issues; and
(5) the email in question.
21 It was considered by the Tribunal evident that, individually or collectively, those actions constituted administrative action taken in respect of Ms Ringshaug's employment, being a characterisation that was conceded by her counsel. Those actions then had to be considered as to whether or not one or more of them was reasonable, and undertaken in a reasonable manner. As the Tribunal put it at [33] (emphasis added):
For present purposes it is sufficient to consider whether the succession of actions which impacted on Ms Ringshaug in the early months of 2013, taken as a whole and being administrative action taken in respect of her employment, amounted to reasonable action taken in a reasonable manner.
22 The Tribunal found that most of Ms Ringshaug's assertions of unreasonable behaviour were not the subject of evidence as opposed to mere assertion. The one allegation which was the subject of evidence concerned what was described as conflict of interest issues in having an employee who was responsible for scheduling disability support rosters also being one of the persons performing that work and therefore getting the benefit of favourable scheduling decisions. That gave rise to a related issue of workplace harmony arising out of discontent on the part of other employees, apparently because of the existence of such an arrangement.
23 It was submitted on behalf of Ms Ringshaug that the conflict of interest consideration (incorporating the aspect of the adverse reaction of other employees) should have been put to one side and a return to mixed duties permitted if only in her case because of her unique medical considerations. The Tribunal accepted that this would have been a reasonable response by management, but did not accept the converse, namely that failure to do so was unreasonable. The Tribunal characterised the responses of management to Ms Ringshaug's employment issues as "meticulous and diligent".
24 The Tribunal considered an argument that the Full Court decision in Martin v Comcare meant that the reasonable administrative action exclusion could not apply, but rejected that argument upon the ground that, accepting the Full Court test, the exclusion nonetheless applied because it found that Ms Ringshaug's condition was a direct consequence of management's actions in a straightforward cause-and-effect sense. That is, even reading down the exclusion to the extent required by the Full Court decision so that the exclusion only applied if the last step in a chain of causative events was itself reasonable administrative action, the exclusion still applied because of the direct relationship between the decision and her reaction. This was a relevant difference to the situation in Martin v Comcare in which the reaction was indirect because it arose from the flow-on effect of a failed promotion application and Ms Martin realising that it meant a return to a prior position under a supervisor whom she considered had bullied her. The Tribunal characterised the argument advanced on Ms Ringshaug's behalf that she was injured by her reaction to management's actions, and not by the actions themselves, was based on a logical fallacy. The Tribunal said this was the equivalent of a child arguing that what broke his mother's window was a cricket ball interacting with it, not his cricket bat propelling the ball in its direction.
25 Whatever the merits of the cricket ball analogy, it is clear that Ms Ringshaug's exclusion argument depended upon the Full Court's reasoning process applying, an argument that is no longer available given the decision of the High Court. Although it is now academic except perhaps on the question of costs, I consider that the Tribunal was correct in concluding that even on the narrower Full Court test in Martin v Comcare, the reasonable administrative action exclusion would have applied because of the direct nexus Ms Ringshaug asserted between the condition she relied upon and the actions of her employer.
26 Reference was made at [17] above to the argument that the Tribunal had misunderstood the nature and extent of the concession made on behalf of Ms Ringshaug in relation to the impact of failure on the first action on success on the second action. At the hearing of the appeal, it was argued on her behalf that the concession as to the second action failing if the first action failed was confined in nature. It was asserted to have been limited to failure on the first action upon the basis of reasonable administrative action only and not to have extended to failure only upon the basis of a finding of an insufficient ailment. The reasoning was that failure on the first action on the basis of insufficient ailment only did not preclude success on the second action because the psychosomatic illness might be severe enough even though its source was not. It is not necessary to consider whether the doubtful proposition standing behind the asserted more limited concession is correct or not. That is for two reasons. First and most fundamental, I have carefully considered the portions of transcript to which I was taken by the parties and consider that the Tribunal was correct to regard the wider concession as having been made on Ms Ringshaug's behalf. If a more limited concession was intended, that was not what was conveyed. The Tribunal was entitled to proceed upon the basis that the wider concession had been made. Secondly, even on the narrower concession, failure on the reasonable administrative action ground for the first action necessarily meant failure on the second action. As the High Court decision dictates failure of the first action on the reasonable administrative action ground, the second action must also fail.