Weekly payments of compensation and the cost of benefits payable under Division 2 of Part VI of the Act are not to be paid from the date of this decision.

Reasonable administrative action - Whether perceived consequence - Conflicting evidence on causation.

Workers Rehabilitation and Compensation Act 1988;

ss 81A; 25(1A)

St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90;

Tassal Operations Pty Ltd v Lese [2021] TASSC 22;

Skilled Group Limited v Anning [2015] TASSC 18; Comcare v Martin [2016] HCA 43; 258 CLR 467.

The decision has been anonymised for the purpose of publication.

1. The worker is employed as a relief teacher at [the school] and has claimed compensation for a psychological illness which she attributes to her employment. The employer does not deny the worker's illness but asserts that a reasonably arguable case exists concerning its liability to pay her compensation. Whether a reasonably arguable case does exist is the issue for determination.

1. A reasonably arguable case will exist if "it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected." See Evans J at [10] in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90. The employer's case need not be strong or compelling but it must at least be reasonably arguable. See Tassal Operations Pty Ltd v Lese [2021] TASSC 22 at [8]. The employer has the onus of demonstrating the existence of a reasonably arguable case. See Skilled Group Limited v Anning [2015] TASSC 18.

1. The worker lodged her claim with the employer on 7 February 2025. She asserts that her illness first presented on 27 June 2024 and that she ceased work on that day. In her description of 'what happened' the worker states:

On June 27/24 I was notified by [IC] that there had been a claim made against me concerning sexual misconduct at [the school]. I was assured that it would be sorted and I would be able to return to work at the beginning of term III as the camera footage would be viewed during the vacation period. When I received the letter from the Dept detailing the allegations made, I found these details highly distressing. I was unable to function normally. I became an insomniac and I couldn't eat. I was given 6 counselling sessions through the Dept Ed c&yp only. I had to fight to get more. A letter from my GP resulted in 2 more sessions only. I was gobsmacked and felt very unsupported by the organisation I had given my whole life to as a dedicated & innocent teacher. I was instructed not to talk to anyone other than my support person which proved very debilitating. I was not able to speak about it with any teachers: most of my friends are teachers. The investigation proved very protracted. I did not receive the letter of exoneration until 4 Nov. 24. From 27/6/24 - 4/11/24 I was in a constant state of hyperarousal suffering from depression and anxiety, due to the distgusting [sic] lies told about me by the student. I was directed to meet with [LU] on two occasions to advocate for myself which I found most disturbing for my overall self efficacy and mental health and my health was declining significantly during this period of time. When the matter was considered "closed" (I had received the letter of exoneration 4/11/24) in my mind it was not 'closed' as the Department now had a long term employer who was in fact "broken". I was adamant that the matter was not closed. I was given no further support, other than two more counselling sessions through EAP.

2. The claim also includes an initial medical certificate provided by Dr Amanda Lo. She certifies the worker to be suffering from an acute deterioration of anxiety and depression which became incapacitating on 27 June 2024 and which she considers to be consistent with the work-related events as described to her by the worker.

1. By its referral the employer baldly recites ss 25(1A)(a) and 25(1A)(c) of the Workers Rehabilitation and Compensation Act 1988 (the Act) as being the reasons for its dispute of the worker's claim without providing an expansion of those reasons to enable either the worker or the Tribunal to understand the employer's position. In my opinion, this is a regrettable and unsatisfactory approach. Nevertheless, it seems from oral submissions that the employer relies on two bases for disputing the claim.
2. First, it says that it was the communication of the allegations of inappropriate behaviour to the worker and not the content of that communication which was causative of her ailment. That communication, it is said, was an administrative action taken in a reasonable manner by the employer in connection with the worker's employment and hence enlivens s 25(1A)(c) of the Act.
3. Second, and in the alternative, the employer says that it is arguable on the evidence that the worker's ailment is attributable, not to the allegations made against the worker, but rather to the worker's opinion upon the employer's shortcomings in its investigation of those allegations and the support provided by it to the worker during that time. Those matters, the employer says are pertinent to both s 25(1A)(a) and (c) and provide it with a 'defence' to the worker's claim.

1. This includes the worker's claim documents along with an additional workers compensation medical certificate dated 4 February 2025, a report of Consultant Psychiatrist, Dr Michael Evenhuis who examined the worker for the employer, an email from [IC], the worker's Principal and statements from [NV] and [LU], managers in the employ of the employer. Also, the worker read into evidence a pre-prepared statement.

1. It is common ground that the worker does suffer from an illness of the mind, whether it be an acute deterioration of her anxiety or depression as diagnosed by Dr Lo or the recurrence of a major depressive episode with anxious distress as opined by Dr Evenhuis. Too, the employer accepts that the deterioration or recurrence of the worker's underlying psychological illness is attributable to her employment. This is consistent with this opinion of Dr Evenhuis: "I would consider that her employment was the major contributing factor." This brings me to consider whether the worker's ailment has arisen in circumstances which mandate a reasonably arguable case determination on either or both grounds for dispute raised by the employer.
2. Dealing first with the employer's submission pertaining to s 25(1A)(c). It provides that compensation is not payable in respect of an illness or disorder of the mind which arises substantially from:

(c) reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment.

In my opinion, [the worker's] recurrence of major depressive order occurred as a consequence of the allegation that she had sexually abused a student.

A significant issue in the claim is whether or not reasonable administrative action contributed substantially to [the worker's] injury. From her point of view, the investigation process itself was injurious but also unreasonable. In my opinion, [the worker] would not have experienced such a marked reaction had she not been accused of sexual misconduct. That is, the nature of the complaints were particularly distressing to her because of her own history of having been abused. Hence, from my point of view, the major contributing factor was the nature of the complaint rather than the complaints process.

1. The employer accepts that at first blush the latter opinion of Dr Evenhuis does not appear supportive of its position. However, it submits that to establish the cause of the worker's illness it is necessary to divorce the allegation of sexual misconduct from the act of its communication to the worker. It is the communication which it says is the factor causative of the worker's illness. That act it says, qualifies as administrative action which it took in a reasonable manner thereby, arguably at least, enabling the employer to avoid liability for the worker's claim.
2. In support of this submission the employer relies upon the decision of Comcare v Martin [2016] HCA 43; 258 CLR 467. In that matter an employee of the ABC suffered a deterioration of a mental condition after being informed that she had been unsuccessful in obtaining permanent appointment to a role in which she had been acting temporarily. The decision raised the prospect that the employee would return to her substantive position under the supervision of her previous supervisor against whom she had earlier made allegations of bullying. After multiple appeals the matter reached the High Court. There the Court at [41] stated the single issue for its determination to be "whether the Tribunal was correct in law to conclude that the deterioration of Ms Martin's mental condition triggered by her contemplation of a perceived consequence of the decision was a disease which she suffered as a result of that decision within the meaning of s 5A(1)." The perceived consequence was the prospect of Ms Martin resuming her previous position under the supervision of a bullying supervisor. The Court found the reasoning of the Tribunal to be correct.
3. Counsel for the employer referred the Tribunal to [48] of the Court's decision which it says supports its submission:

[48] The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence - whether personal or professional, direct or indirect, real or imagined - is beside the point.

4. In my view the reasoning in Comcare has little application to the situation here. In Comcare the Court was required to decide whether an ailment attributable to the perceived consequence of the employer's decision to deny a promotion qualified as a condition for which the employer could avoid liability under a provision similar to s 25(1A)(c). In the case at hand, the medical evidence indicates that it is not the perceived consequence of the employer's communication to the worker that was causative of her illness but rather the content of that communication itself, that is the allegation that she had sexually abused a student.
5. In my view, the employer's contention that it is reasonably arguable that the worker's illness was attributable to its reasonable administrative action in communicating the allegation of sexual abuse to the worker should be rejected.
6. I now turn to the employer's second ground for dispute. As I have said, it is the employer's assertion that it is arguable on the available evidence that the worker's illness is caused, not by the allegation of sexual abuse but rather, on her account, by the delay in its investigation and the lack of support by the employer. It is said that on this basis a reasonably arguable case determination should be made as these are matters 'captured' by s 25(1A)(a) and/or (c).
7. What then is the evidence relevant to the employer's submission?
8. In her claim form the worker cites several matters which may qualify either as administrative action taken within s 25(1A)(c) or reasonable action taken to counsel the worker within s 25(1A)(a) and which she contends to be relevant to her illness. These are:
   • The employer's resistance to the worker accessing sufficient counselling sessions.
   • The inadequate support of the employer generally.
   • An instruction for the worker not to talk to anyone other than a support person.
   • The delay in completing the investigation of the allegation made against the worker.
   • The direction for her to meet with [LU] on two occasions.
   • The employer's decision that the matter was 'closed' when the worker did not accept this to be so.
9. It is also noted that Dr Lo, in her initial medical certificate indicates that the worker considered the prolonged investigation along with lack of support to be factors relevant to the cause of her illness.
10. I have referred above to some extracts of Dr Evenhuis' report which have relevance to the employer's submission. There are others.
11. Under the heading Progression of Symptoms, Dr Evenhuis records:

[The worker] expressed a view that the process was more traumatic for her than the actual allegations and said it was so protracted and went on and on. Weeks would go by without update. [The worker] felt that the HR manager involved, [UV], was dismissive and said that he 'did not give a shit and did not care.' She was informed that the process was over, but she said that she was not ready and was broken despite the process having come to a close. She was told she would have no more access to EAP despite the fact that she was broken.

[The worker's] deterioration is a consequence of both the nature of the allegations and her perception that the process was unnecessarily prolonged and that she was inadequately supported.

As discussed under Summary and Opinion above, the major factor was the allegation itself, in my opinion. From [the worker's] point of view the prolonged investigation process and lack of support was more injurious than the allegation itself. This might suggest that the investigation process was a substantial contributor. However, I do note that [the worker] immediately deteriorated when informed of the allegation prior to the investigation or process really having commenced. Hence, I would not consider that administrative action contributed substantially to her initial incapacity.

As set out under 11 above, contributing factors included the allegations themselves, [the worker's] perception that the investigation was prolonged and she was not supported, her pre-existing major depressive disorder, and her vulnerability due to her exposure to childhood trauma were all contributing factors to her presentation. In my opinion, the most significant contributing factor was the allegations themselves.

1. Dr Evenhuis has written a very comprehensive and well-reasoned report produced following a 95-minute consultation with the worker and after the review of a quantity of written material provided by the employer's legal adviser. He concludes, as is evident from the above quotations that, in his opinion the most significant factor causative of the worker's illness is the allegation of inappropriate sexual conduct. This opinion is consistent with Dr Lo's certificate. However, it is an opinion which is not consistent with the worker's own views upon the most causative factor, that is as recorded by Dr Evenhuis, the prolonged investigation and the lack of adequate support.
2. I have read the email written by [IC] along with the reports provided by [LU] and [NV]. In my view their contents, if accepted, would make it arguable that the employer has acted in a reasonable manner in its investigation of the allegations made against the worker and its provision of support. In my further view these are actions which, arguably at least, qualify as reasonable administrative action.
3. In the result, on the material available, there is a conflict between the medical opinion upon the factor(s) causative of the worker's illness and her own opinion. If following a contested hearing the worker's own opinion prevailed then her claim for compensation may fail by operation of s 25(1A)(c) of the Act. It follows that I determine that a reasonably arguable case does exist. There will be orders pursuant to s 81A(3)(c) and (d).