Lynch and Comcare [2010] AATA 38 (20 January 2010)

Last Updated: 20 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 38

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2602

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Roger Lynch

Applicant

And

Comcare

Respondent

DECISION

Tribunal

Professor RM Creyke, Senior Member Dr P Wilkins, Member

Date 20 January 2010

Place Canberra

Decision

The decision under review is affirmed.

.....................[sgd]......................
Professor RM Creyke, Senior Member
Dr P Wilkins, Member
CATCHWORDS

WORKER’S COMPENSATION – injury ‘major depressive disorder, single instance’ – causation of injury – meaning of to ‘a significant degree’ – meaning of ‘as a result of’ – whether ‘reasonable administrative action taken in a reasonable manner’ – authority of workplace delegate – natural justice – decision affirmed

Public Sector Management Act 1994 (ACT) s 9,

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1),(2), 5B(1),(2),(4), 7(4)

Workplace Relations Regulations 1996 (Cth) reg 30CA

Abrahams v St Virgil’s College [1998] TASSC 53

Ansell v Wells [1982] HCA 58; (1982) 43 ALR 1

Arafura Seafood Products v Landos (1988) 16 ALD 519

Australian Postal Corporation v Burch [1998] FCA 944; (1998) 85 FCR 264

Comcare v Caldwell [2008] FCA 2015

Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232

Comcare v Chenhall (1992) 109 ALR 361

Comcare v Mooi (1996) 69 FCR 439

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536

Etherton v Public Service board of New south Wales [1983] 3 NSWLR 297

Re Georges v Telstra Corporation Ltd [2009] AATA 731

Re Gilbert v Comcare [2009] AATA 224

Hall v University of New South Wales [2003] NSWSC 669

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

HIH Winterthur Workers Compensation (SA) v Hickman [1997] SAWCT 17

Hurt v Rossall (1982) 43 ALR 252

Re Inglis v Comcare (1997) 49 ALD 183

Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547

Kelson v Forward (1995) 60 FCR 39

Kucks v CSR Ltd (1996) 66 IR 182

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467

Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354

Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203

Minister for Immigration and Citizenship; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 259 ALR 405

Moi v Comcare [2006] AATA 726

R v Pharmacy Board of Victoria; Ex parte Broberg [1983] 1 VR 211

R v Solicitors’ Disciplinary Board Tribunal; Ex parte L [1988] VR 757

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Webb (1987) 76 ALR 131

Robb v Chief Commissioner of Police [2005] VSC 310

Swanson v Northern Territory (2006) 204 FLR 392

Wattyl Australian Pty Ltd v York [1997] NTSC 86

Weigand v Comcare [2006] FCA 1620

Weigand v Comcare (No 2) [2007] FCA 237

William van Oostveen v Comcare [1998] FCA 1124

Workcover Corporation of South Australia v Summers (1995) 65 SASR 243

20 January 2010 REASONS FOR DECISION

Professor RM Creyke, Senior Member Dr Wilkins, Member

1. Mr Roger Lynch, an employee of Australian Capital Territory (ACT) Health since 1991, sought compensation and rehabilitation from Comcare for a condition classified as ‘major depressive disorder, single instance’.
2. That claim was rejected by Comcare on 23 February 2008, a decision upheld on reconsideration on 5 June 2008. On 11 June 2008, Mr Lynch sought further review by the Tribunal.

BACKGROUND

3. Mr Lynch is employed as a Health Professional Officer, Level 2 in Biomedical Engineering Services at the Canberra Hospital by the ACT Department of Health . Until some time in June or July 2007, Mr Lynch was the Occupational Health and Safety Officer for Biomedical Engineering, and also a union delegate.
4. On Thursday, 21 June 2007, Mr Lynch received a letter from Mr John Brown, Manager of the Clinical Engineering Section within the Biomedical Engineering Department. Mr Brown was Mr Lynch’s immediate supervisor. The letter alleged that Mr Lynch had engaged in ‘inappropriate and unprofessional behaviour in the workplace’ and included a memorandum of complaints by six of Mr Lynch’s workmates that listed nineteen examples of behaviours of concern. The covering letter categorised the alleged behaviours, stating:

You:

• Display consistent bullying and harassing behaviour in the workplace;
• Do not treat co-workers within Biomedical Engineering with courtesy and sensitivity;
• Have coerced co-workers within Biomedical Engineering.

5. The letter pointed out that if found to be true, such behaviour would breach the General Obligations of Public Employees under section 9 of the Public Sector Management Act 1994 (ACT) and ‘could lead to discipline [sic] action, up to and including termination’. The letter noted ‘ACT Health expects its employees to behave, at all times, in a manner consistent with the department’s Code of Conduct ... and Section 9 of the Act.’
6. The letter also said that the matter would be handled in accordance with Section K – Discipline, Clause 78 of the ACT Health Clerical, Technical, Professional, Health Service Officers’ Certified Agreement 2004-2007 (Certified Agreement).’ The letter invited Mr Lynch either to attend a meeting on Tuesday 26 June 2007 to discuss the allegations, or to provide a written response to the allegations outlined in the complaint memorandum of 21 June 2007. Mr Lynch was advised that he could bring a support person to the meeting, and that a record of interview would be taken. Mr Lynch was warned not to discuss the allegations with any of the parties involved. The letter concluded: ‘failure to follow this direction may result in further discipline.’
7. Reference to the Certified Agreement Section K – Discipline, was to the processes to be invoked for disciplinary matters. The ‘Commencement of Formal Discipline Procedures’ requires a manager to counsel the employee and set out the steps in that process.[1] In particular, the process provides two steps. Step one states informal counselling should normally precede a more formal disciplinary process, provided in step two. In 2006, a meeting had been held on 8 August 2006 between Ms Jennie Baker, Director of Biomedical Engineering Services; Ms Linda Bower, Senior Advisor in the Workforce Strategy area of ACT Health; and Mr Lynch. The meeting concerned the use of a pool car by Mr Lynch. This was relied on by ACT Health as ‘step one’ in the process.
8. The circumstances of the August 2006 meeting are found in a handwritten note by Mr Brendan Hill, Mr Lynch’s then manager, dated 22 August 2006. In it, Mr Hill stated, ‘this was not a disciplinary meeting but simply a discussion.’ The note went on, ‘next time, it would be disciplinary action’. There are other records of this meeting. A hand-written note by Ms Baker, dated 8 September 2006, stated in essence: ‘Linda Bower, Roger Lynch and JE – Meeting organised to discuss RLs concerns with access to car for on call and the fact that he was feeling “harassed” by B Hill’ and noted ‘Linda re-enforced a manager’s right to direct employees and the need to follow instructions’ and ‘RL was given the opportunity for further input but declined and left meeting.’ The note also recorded that ‘RL was offered input at a later time.’
9. A second record is contained in an email from Ms Baker to Mr Lynch dated 10 July 2007, apparently based on the handwritten notes of Ms Baker and Ms Bower. The email describes a meeting on ‘8 August 2006’, which noted that the following was discussed:
   • Issue in relation to the Biomed Pool Car. An agreement that Use of Biomed Pool Car guidelines would be circulated to all staff in Biomed.
   • Management’s expectation of staff when applying to use the Director’s car.
   • Discussion around expected reporting lines, hierarchical structure within Agency, levels and order of authority, management’s expectation in relation to the raising of issues, appropriate behaviours as contained in Section 9 of the Public Sector Management Act 1994.
   • Discussion around communication protocols and recognition by management to have regular team meetings;
   • Clarification of roles of Brendan and Jennie.
   • Linda Bower re-enforced a manager’s right to direct employees and the need to follow instruction.
10. On Friday 22 June 2007, the day after he received the letter from Mr Brown, Mr Lynch attended work. He emailed Ms Baker and asked to speak to her about the letter. She declined, stating ‘there is currently a process being undertaken in relation to the complaint, [and] it would be inappropriate for me to discuss this process as it is being managed by John Brown.’[2]
11. Also on that day, Mr Lynch contacted a representative of the union, Ms Jane Timbrell, to discuss the matter and the proposed meeting. Ms Timbrell said she was not available on 26 June 2007 and the meeting would need to be re-scheduled. She also needed to discuss the matter with the complainants, five of whom were union members.[3] The meeting was re-scheduled, first to 2 July 2007, and then to 11 July 2007, but ultimately it did not go ahead.[4]
12. On Saturday 23 June 2007, Mr Lynch visited his general practitioner, Dr Robert Allan and was diagnosed as suffering from ‘acute situational reaction as a result of a complaint made against him by co-workers.’ Mr Lynch had been unable to obtain an appointment on Friday 22 June 2007. Dr Allan provided a medical certificate recommending that Mr Lynch not undertake ‘mechanical’ work ‘until the issues at work have been resolved’, but said Mr Lynch was ‘fit to perform “electronic” work and other duties.’ At that time, Mr Lynch’s duty statement only required him to carry out ‘mechanical’ work, not ‘electronic’ work. The duty statement was eleven years old and related to an obsolete Technical Officer 3 position. Evidence was provided that Mr Lynch’s duty statement had not been updated in 2005 after a restructure of his area and his reclassification as a Health Professional 2 (HP2). Mr Lynch said he regularly performed electronic work as well as mechanical work and that he has experience working in both fields
13. On Monday 26 June 2007, when Mr Lynch attended work, Mr Brown suggested they have an informal meeting at 11:00am. When Mr Lynch asked the purpose of the meeting and who else would be attending, Mr Brown’s response, according to his statement, was: 'we could talk about the allegations that have been made against you.’ However, the contemporaneous notes of Ms Bower stated that Mr Brown had said: 'JB informed not to do with actual allegation & that the meeting was re doctor's certificate.’ Mr Lynch attended briefly but then said he needed to seek advice, and left the meeting at 11:15am. According to Ms Bower’s notes of the meeting, ‘JB asked him to come back. RL stated “I’d rather not”.’ He also declined to attend a further meeting offered by Mr Brown at 12:45pm.
14. Some time later that day, Mr Lynch received a letter from Mr David Robertson, Director of Workplace Strategy, Human Resource Management Branch, ACT Health, which stated:

...[A]s you are unfit for duty, you are directed to leave the workplace immediately. You will be placed on Personal Leave ... Also attached for your information is a copy of your most recent Duty Statement that outlines the duties you are required to undertake during your employment with ACT Health. You will note that these duties are of a mechanical nature. You will be able to return to the workplace once you furnish medical evidence from your doctor indicating that you are fit to resume your normal duties.

15. Mr Lynch signed a personal leave form on 26 June 2007 and left the workplace but noted that he did so 'under duress'. Since 26 June 2007, Mr Lynch has not returned to work with the agency.
16. In response to the 26 June 2007 letter from Mr Robertson, Dr Allan provided a further medical certificate, also dated 26 June 2007, which stated:

The first paragraph of [Mr Robertson's] letter states that my certificate of 23 June certifies Mr Lynch as unfit to undertake mechanical work. In fact it does not state that at all. He has always remained fit to perform all the work he has undertaken at TCH. My certificate recommended that he not undertake ‘mechanical’ work until the issues at work had been resolved. These issues are not of a physical or medical nature, but relate to interpersonal conflict as evidenced in the letter of complaint from Mr Lynch’s co-workers.
Let me make it perfectly clear: Mr Lynch is medically fit to undertake his normal duties.

17. On 28 June 2007, a minute of a telephone call from Ms Timbrell noted the need to address the loss of productivity, the disturbance in the workplace, and the impact on the morale of the staff in Biomedical Engineering. She suggested there needed to be a meeting as soon as possible since ACT Health owed a duty of care to its staff.
18. On 29 June 2007, Ms Bower emailed Ms Baker to say that the behaviours in the complaint from Biomedical staff would need to fit into one of the categories constituting ‘serious misconduct’ in the ‘Workplace Relations Act 1996 (Regulations) ... in order to move to formal discipline.’
19. On 2 July 2007, the six complainants signed a request that a formal investigation be undertaken by the Australian Industrial Relations Commission (AIRC) under the auspices of the ACT Health Human Resource Management Branch to resolve the matter. This was a reversal of their initial position, as stated in their letter of complaint on 21 June 2007, that the matter be handled informally.
20. On 6 July 2007, Ms Bower called the solicitors for Mr Lynch to say that the complainants had requested the matter be dealt with formally. This was despite the solicitor’s request, in a letter of 4 July 2007, that the matter be dealt with informally.
21. On 13 July 2007, Mr Brown emailed the complainants to request they attend a series of individual meetings on Monday 16 July 2007 to discuss their concerns about Mr Lynch. There was evidence of such a meeting with Mr Peter Taunton on 16 July 2007, but not with the others. In that interview, Mr Taunton is recorded as referring to an earlier event not involving any of the complainants in which ‘Roger and Ray’ were ‘screaming at each other in the workplace’ and ‘Ray quit not long after.’ Five of the complainants provided written statements on 16 July 2007, with the sixth complainant providing a written statement on 23 July 2007.
22. On 17 July 2007, Mr Lynch’s solicitor received a facsimile from Mr Robertson on behalf of ACT Health, which directed Mr Lynch not to contact or discuss the matter with other staff. Mr Robertson stated that this was due to the number of complainants that had been contacted by ACT Health employees seeking to represent Mr Lynch and requesting the complainants withdraw their allegations. The action is confirmed by a file note to Ms Irene McKinnon, then Executive Director, Business Support, ACT Health, dated 23 July 2007. That file note stated, ‘Lynch had [people] ringing up others and making claims.’ The file note also recorded Ms McKinnon ‘would be pretty pissed off if he’s let off the hook – behaviour has been historic and finally an opportunity to resolve.’
23. In a letter by Mr Lynch’s solicitor to Mr Mark Cormack, Chief Executive Officer (CEO) of ACT Health, dated 18 July 2007, it was pointed out that ‘the effect of [the] directions [to Mr Lynch not to contact anyone in his workplace about the incidents without the permission of the Director Workforce Strategy] is to effectively forbid our client to defend himself or even to seek some measure of personal support from any workmates’ and had ‘the perverse effect of prohibiting the only course for resolving [the matter] that [is] positive from our client’s perspectives.’
24. The letter proposed that a meeting be scheduled to resolve the matter. No response was received until 13 September 2007, when Mr Lynch’s solicitor was advised that the formal mediation process was being handled by ACT Health Human Resource Management Branch.
25. On 24 July 2007, Ms Baker emailed the Injury, Prevention and Management (IP&M) department of ACT Health, asking whether the department could ‘provide any input or support’ on Mr Lynch’s matter. The email asserted that ‘Mr Lynch has not returned to employment and has produced regular medical certificates... [stating that] Mr Lynch cannot return to work until the issue with his workmates is resolved but cannot return to meet with them because he is under redical [sic] restriction.’ In a further email exchange, Ms Baker advised Ms Bower that the IP&M department in response did not see a role for themselves and 'were happy that we were doing all that we could.’
26. Between the period of 2 July 2007 and 30 July 2007, Mr Lynch attended the workplace on one day to access his computer. Following that visit, on or about 27 July 2007, Ms Bower advised Ms Baker that she could suspend Mr Lynch’s email account until he returned to work and that she could ‘see no harm in asking Roger to either provide his key or have security de-activate his swipe card until he is able to return’.
27. In a later email from Ms Bower to Ms Baker, dated 30 July 2007, Ms Bower suggested ‘it would be reasonable to restrict Roger [sic] swipecard access to Monday to Friday access during normal working hours. This action would be taken to ensure that ACT Health’s security system isn’t compromised after hours and would be considered a reasonable action for management to take.’ Ms Bower also suggested that an audit be taken of when Mr Lynch logged on to the workplace computer system before taking any action in relation to his email access. Ultimately, the Security and Emergency Preparedness unit of ACT Health advised Ms Baker in an email dated 31 July 2007, that they were unable to make the changes she requested but noted they could monitor the usage on Mr Lynch’s card and advise of any access outside of normal business hours. However, Ms Baker was informed that these restrictions would require the approval of either the CEO of Health or the CEO of InTACT. On 2 August 2007, Mr Lynch’s solicitor wrote to the CEO of ACT Health, Mr Cormack, and expressed concern at the inquiries into Mr Lynch’s IT usage. No response was received to this letter.
28. On 6 August 2007, Ms Baker advised Ms Bower that she could ’find meaningful duties for Roger in Sterilising at Mitchell at any time which will utilise his skills.’
29. On 22 August 2007, Ms Tanya Wheeler and Mr David Robertson wrote a report to Ms Heidi Robinson, senior management at ACT Health, regarding the progress of the disciplinary action in Mr Lynch’s matter. They stated that in addition to the events that took place on 8 August 2006, movement to step two of the disciplinary process in Section K of the Certified Agreement was justified, given the seriousness of the allegations and given six of Mr Lynch’s co-workers made the complaint in writing.
30. On 3 September 2007, Mr Lynch and the six complainants agreed to participate in a mediation conference. The process was said to be under the relevant Certified Agreement, 'Section K - Discipline generally and clause 77 (Step One: Informal Discussion) in particular.’ On 9 October 2007, the mediation between all the parties occurred. The mediation took seven hours and involved Mr Lynch with all six of the complainants and an external mediator. Mr Lynch said he was told by one of the complainants, during the mediation, that he was not welcome back in Biomedical Engineering
31. On 19 September 2007, Mr Lynch again visited the workplace. Ms Baker called him into her office and advised him that he was not to return to work until he could produce a medical certificate stating that he was fit to do so.
32. In a Work Performance Report by Mr Brown, dated 9 October 2007, Mr Lynch’s performance was generally ranked highly, as was the quality of his work, his work output, his application, his drive and energy, his relations with clients and his expression. The only negative comments were in his relations with other people. It was commented, ‘Mr Lynch... does not appear to deal well with confrontation’ and in his oral communications ‘[h]e appears to lack empathy at times when dealing with work colleagues.’[5]
33. On 15 October 2007, Mr Lynch submitted a claim for workers’ compensation in respect of ‘acute situational anxiety reaction’ with a date of injury of 26 June 2007.
    

LEGISLATION

34. Provisions of several Acts are relevant.

First, the Safety, Rehabilitation and Compensation Act 1988 (Cth) (The Act):

5A Definition of injury

(1)  In this Act:

injury means:

(a)  a disease suffered by an employee; or

(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 ...

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.

5B Definition of disease

  (1)  In this Act:

disease means:

                     (a)  an ailment suffered by an employee; ...

that was contributed to, to a significant degree, by the employee's
employment by the Commonwealth or a licensee.

(2)  In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or
a licensee, the following matters may be taken into account:

                     (a)  the duration of the employment;

                     (b)  the nature of, and particular tasks involved in, the employment;

                     (c)  any predisposition of the employee to the ailment or aggravation;

                     (d)  any activities of the employee not related to the employment;

                     (e)  any other matters affecting the employee's health.

This subsection does not limit the matters that may be taken into account.

(3)  In this Act:

significant degree means a degree that is substantially more than material.

4 Interpretation

(1) In this Act, unless the contrary intention appears ...

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

Also relevant is reg 30CA of the Workplace Relations Regulations 1996 (Cth) [now regulation 12.10, but expressed in the same terms as former regulation 30CA]:

12.10 Required period of notice — exception for serious misconduct

(1) For paragraph 661 (1) (c) of the Act [formerly paragraph 170CM (1) (c)], serious misconduct includes:

(a) wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; and

(b) conduct that causes imminent, and serious, risk to:

(i) the health, or safety, of a person; or

(ii) the reputation, viability or profitability of the employer’s
business.

(2) For subregulation (1), conduct that is serious misconduct includes:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault; or

(b) the employee being intoxicated at work; or

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(3) Subregulation (2) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

The final relevant legislation is the Public Sector Management Act 1994 (ACT):
9 General obligations of public employees

A public employee shall, in performing his or her duties:

(a) exercise reasonable care and skill;
(b) act impartially;
(c) act with probity;
(d) treat members of the public and other public employees with courtesy and sensitivity to their rights, duties and aspirations;

...

(f) not harass a member of the public or another public employee, whether sexually or otherwise;
(g) not unlawfully coerce a member of the public or another public employee;
(h) comply with this Act, the management standards and all other territory laws;
(i) comply with any lawful and reasonable direction given by a person having authority to give the direction ...

ISSUES

35. There is no issue that Mr Lynch suffered a psychological injury, variously described by the medical experts as an ‘adjustment disorder’; an ‘acute or a chronic situational anxiety reaction’; or a ‘major depressive disorder, single instance’. The injury is deemed to have occurred on 23 June 2007,[6] and incapacitated him for work between 23 June 2007 and 29 February 2008.[7] The principal issue is what caused the injury. However, even if the actions in the workplace contributed to a significant degree to the injury, liability may still be excluded if the actions amounted to ‘reasonable administrative action taken in a reasonable manner’.[8] Mr Lynch also claims he was denied natural justice.
36. A sub-issue is whether the adjustment disorder was caused principally by the allegations of his work colleagues in their letter of complaint, or by the manner in which the processes surrounding the complaints were handled by ACT Health.
37. A further sub-issue is whether the only relevant ‘administrative action’ is action taken prior to the development of the injury, or whether action subsequent to the injury can raise inferences about the conduct that occurred prior to the injury.
38. Counsel for the applicant claimed that the cause of Mr Lynch’s injury was his receipt of the complaints about his behaviour from his work colleagues. If that argument was not accepted, however, the alternate argument was that the administrative action taken prior to 23 June 2007 was causative of his condition and that action by management at ACT Health was not ‘reasonable administrative action taken in a reasonable manner’.

EVIDENCE OF MR LYNCH

39. In his amended written statement of 24 April 2009 Mr Lynch stated that following his reading of the letter and the complaint memorandum on 21 June 2007:
    • I immediately felt shattered. I was shocked by the allegations of my work colleagues. ... I was stunned that my work colleagues had done this. I felt overwhelmed by what was happening. ...
    • I decided to leave work for the day and drove straight home. When I arrived home I felt stressed, anxious and I started shaking. I couldn’t stop pacing and began to get a headache. I felt that my heart rate was up and I could hear it beating.
    • That night I couldn’t eat dinner. The content of the Letter of Complaint was all going round in my head and I couldn’t concentrate on anything. I feared for my career and my future and didn’t know how I was going to face work the next day. I couldn’t sleep. I kept thinking ‘I have to go and see a doctor’.
    • The next morning I called my doctor’s surgery to try to arrange an appointment but I couldn’t get an appointment with my GP, Dr Allan, until the following day. I decided to go to work because I had projects to finish and other departments of the hospital were relying on me to complete certain tasks including the Neo Natal ward.
40. In his initial written statement dated 27 August 2008, Mr Lynch stated:
    • Prior to the incidents relating to the letter of complaint, I enjoyed a very happy and healthy lifestyle. I enjoyed hang gliding, played the banjo and enjoyed spending time with my friends and family.
    • However, since the incidents with ACT Health my confidence has declined and I think more negatively about myself. I am tired all the time because I have difficulty sleeping and as a consequence I find it difficult to concentrate. I continue to suffer from depression and I don’t have the same level of motivation to take part in the recreational activities that I enjoyed prior to these incidents with ACT Health.
41. On 9 September 2007, Mr Lynch went to see Dr Lawrence, his treating psychiatrist, and his statement said:

[M]y symptoms had escalated. I was finding it increasingly difficult to function due to poor sleep, anxiety and recurrent intrusive and distressing thoughts. It was at this time that we discussed strategies to assist in improving my symptoms including making a claim for workers compensation. Dr Lawrence prescribed Temazepam to help me sleep and an anti-depressant/anti-anxiety medication called Eslpram.

42. In his evidence at the hearing, Mr Lynch said his duties involved electronic work, such as repairing and monitoring systems for intensive accident and emergency systems and mechanical work, such as repair and maintenance work on video fibre scopes for gastroenterology, nitric ventilators for neo-natal intensive care, and dialysis machines. The electrical work occupied about 70 per cent of his time, and the mechanical work about 30 per cent.
43. Mr Lynch also said in his statement of 27 August 2008 that:
    • Through his solicitors he had advised that he was prepared to engage positively in the meeting scheduled for 11 July 2007, but that meeting was cancelled by Ms Bower;
    • On 18 July 2007, his solicitor wrote to Mr Mark Cormack proposing a meeting to resolve the matter, but no response was received;
    • He resigned from his long-standing union delegate role and his role as an Occupational Health & Safety representative ‘to assist in resolving the issues‘;
    • His union representative contacted him on or about 6 July 2007 and made it clear she could not support him since she risked losing 5 other union members if she did;
    • The letter of 26 June 2007 directing him to leave the workplace was handed to him in the workshop, which caused him ’extreme distress’ as it was ‘in front of all my colleagues’;
    • Despite furnishing HR with medical certificates certifying he was fit to work elsewhere than in Biomedical Engineering, he has not been able to work since which has caused ‘considerable financial hardship,’ and ‘contributed significantly to my ongoing symptoms of anxiety and depression’;
    • He described the mediation session when he had to confront each of the six complainants in the words of Dr Warfe’s report, as a ‘Star chamber, kangaroo court and a hanging’;
    • He noted that Mr Brown had provided ACT Building, Electrical and Plumbing Control with a letter of reference outlining his abilities and experience;
    • On 29 October 2007, Mr Lynch received a letter saying he had been assigned a return to work co-ordinator to assist in the redeployment process;
    • He stated that in November 2007, Mr Robertson had advised him of a suitable position in Health Protection Services at Holder, but despite providing his qualifications and a copy of his curriculum vitae, he had heard nothing;
    • At the same time, when he contacted Mr Robertson in January 2008 about another position, Mr Lynch stated that Mr Robertson said words to the effect of ‘you can apply for the position but under the Certified Agreement I will refuse your placement’;
    • He had a meeting with his return to work coordinator, Mr Ebsworth, on 13 March 2008 and asked him to look into another job. Mr Ebsworth said that he would let him know the following day but Mr Lynch has not heard back from him.
44. In evidence at the hearing, Mr Lynch confirmed that the meeting on 8 August 2006 was a meeting about access to the pool car; he was not disciplined or cautioned at that meeting; no allegations were put to him that he failed to follow the directions of his employer; nor was he informed of any disciplinary issues about himself.
45. In cross-examination, Mr Lynch confirmed that he had gone to see his psychiatrist on 11 September 2006 because he was feeling rundown and thought he had a virus or flu and that in the course of the conversation, he told his psychiatrist that he was having issues with management, as union delegate and OH&S representative. He denied he went to Dr Lawrence because of an anxiety state caused by his conversation with Mr Bower and Ms Baker on 8 August 2006. He said the notes of Dr Lawrence which referred to situational stress were background to the reason for his being there.
46. Mr Lynch also claimed that a note written on 24 February 1998 by Mr ER Middler, Mr Lynch’s former supervisor in the Biomedical Engineering department, stating that in the past, on numerous occasions, Mr Middler had found it necessary to counsel Mr Lynch on his behaviour and so had his immediate manager, was false. He also denied that he had a conversation with Mr Brendan Hill on 22 August 2006 asking ‘if he understood that I had directed him not to use the car.’ Nor did he agree that the meeting with Mr Hill was a disciplinary meeting.
47. Under cross-examination, Mr Lynch agreed that his written statement on 21 June 2007, which stated that Mr Brown had given the memorandum of complaint and covering letter to him in front of his workmates and which he had described as ‘embarrassing and unprofessional’, was false. Mr Lynch accepted that he did not know whether any of his workmates had seen the interchange.
48. Also under cross-examination, Mr Lynch recalled a meeting with a former work colleague, as relayed by Mr Taunton to Mr Brown in an email dated 17 July 2007, complaining about Mr Lynch’s behaviour towards another former colleague. He also acknowledged that he had received an email from one of his workmates on 26 June 2007 suggesting that the concerns of the complainants was more about Mr Lynch’s ignoring two of the group and suggesting that if Mr Lynch were to improve his relationship with the two, the complaint would blow over. Mr Lynch pointed out that despite the email, about a fortnight later he received the second letter saying the complainants wanted the matter elevated to a formal process. He did acknowledge, however, that in attaching the email to his workers’ compensation application dated 15 October 2007, he had betrayed the trust of its author who had written to him in confidence.
49. Mr Lynch further said that he had no memory of saying to Dr Warfe, who examined him on behalf of Comcare in October 2007, that he doubted he would receive a fair and impartial hearing of the issues in 2007 due to a previous counselling session in 2006 where he alleged he was denied natural justice. In re-examination he suggested that his reference to counselling in 2006 was possibly only because by October 2007 he had learned from Ms Timbrell, his union representative, late in June 2007, of ACT Health regarding the 2006 meeting as a counselling session. Mr Lynch claimed when he heard this suggestion from Ms Timbrell his response was, 'No way, I've never been counselled.’ Mr Lynch asserted that the first official word he had about the 2006 meeting being a counselling session was in an email of 10 July.

MEDICAL EVIDENCE

50. On 23 June 2007, Dr Robert Allan provided a medical certificate recommending that Mr Lynch not undertake ‘mechanical’ work until workplace issues had been resolved, but said Mr Lynch was ‘fit to perform “electronic” work and other duties’. On 26 June 2007, Dr Allan stated that Mr Lynch was ‘always fit’ to ‘undertake his normal duties’. He explained his reference in the previous certificate to Mr Lynch avoiding mechanical work only because it was likely to make Mr Lynch’s workplace ‘a more tolerable environment’.
51. In a further medical certificate of 5 July 2007, Dr Allan certified that Mr Lynch was unfit for work between 2 July 2007 and 23 July 2007 inclusive. The certificate stated, however, that Mr Lynch was 'physically fit to perform all' duties, but that 'the allegations made by co-workers against him have caused an acute situational reaction.’ Dr Allan also stated that Mr Lynch was 'likely to remain unfit until this matter has been resolved.’ Dr Allan had also referred Mr Lynch to a psychiatrist, Dr Aidan Lawrence. Subsequent medical certificates confirmed that he was unfit for work from 20 July 2007 to 28 February 2008.
52. Dr Allan confirmed in the hearing that in his consultation of 23 June 2007 Mr Lynch said he was seeking legal advice about the complaints in the letter of 21 June 2007 and was contemplating taking legal action against ACT Health management concerning the matter.
53. In his report dated 19 July 2007, Dr Lawrence supported Dr Allan’s diagnosis of ‘Acute Situational Stress Reaction’. Dr Lawrence stated:

I am of the clinical view that Mr Lynch is physically able to perform all of his duties however I concur with the reasonable assertion by Dr Allan that restricting his application to mechanical duties would assist, in the short term, in defusing the interpersonal issues that have developed ...[W]hilst his symptom complex does not preclude his return to work .... I have recommended, on clinical grounds, that further exposure to these extraordinary stressors is potentially damaging and have further certificated [from 20 July 2007 to 3 August 2007] Mr Lynch as unfit for duty pending the resolution of the known issues

54. Subsequently, Dr Lawrence provided medical certificates in respect of Adjustment Disorder/Acute Stress Reaction for periods from 6 August to 29 February 2008.
55. In evidence at the hearing, Dr Lawrence affirmed that the most accurate diagnosis of Mr Lynch's condition was an adjustment disorder with anxiety, which appears in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV (2000)) TR at 3.09.24. He also stressed that it is the person's perception of the stressor that defines the clinical presentation and the nature of the stressor that is causative of a condition is not necessarily important. So from a diagnosis and treatment perspective, it is what the patient tells you that is important.
56. Dr Lawrence also confirmed that his notes indicated Mr Lynch's visit to him on 11 September 2006 was to do with work stresses in relation to management practices. He denied that Mr Lynch had presented with another condition such as dizziness. However, he said that if Mr Lynch had presented with a condition such as the flu or a viral-like symptom, which in the course of the visit was of lesser importance, he may not have recorded the lesser condition. He also agreed that when Mr Lynch returned to the practice on 23 June 2007, it appeared from the medical record of Dr Allan that the tensions Mr Lynch had exhibited in 2006 had escalated.
57. At the request of ACT Health, Dr Peter Warfe provided a report dated 12 October 2007 and stated in his opinion:
    • Mr Lynch appears to be suffering a chronic situational anxiety reaction ...
    • He would benefit from professional counseling [sic] ...
    • He appears medically unsuitable to be working in the biomedical engineering department.
    • The alleged conduct of the second episode of mediation should be investigated, because if true, the process appears questionable.
    • A successful return to work in the biomedical engineering department appears completely unrealistic.
    • Redeployment is recommended in this case. Invalidity retirement does not appear to be appropriate, in view of the reversible nature of his condition, providing precipitating factors are removed.
58. The report did note Mr Lynch ‘demonstrated some rigidity of thought and little insight into the nature of the conflict with his fellow workers.’ The report also stated that Mr Lynch referred to ‘a previous counselling session during 2006, when he alleged he was denied natural justice’ (emphasis added).
59. A report by Dr Roger Farnbach for Comcare, dated 1 February 2008, stated:

[Mr Lynch] has been treated for depression and his condition has improved to the point where he is now well enough to return to work, and wants to do so, but there is no question of his returning to his former workplace.
The diagnosis is Major Depressive Disorder, and he was unfit for work for several months. He is now fit to return to work and should do so, the sooner the better. He should continue to receive treatment from his general practitioner.
He has no prior history of psychiatric disturbance, and there were no other factors operating in his life to explain the development of his condition.

60. Dr Lawrence provided a further report to Comcare on 14 February 2008. This report noted:

I .... supported ... a needed return to work ... to assist in the development of a sense of meaningfulness in relation to daily activity. I noted that his distress was more than subjective and had distinct physical components, including the insomnia, recurrent nausea, symptoms of insipient panic and his recurrent intrusive thoughts which were associated with symptoms of distress, such as sweating and muscle tension.

I further noted that he remained insightful and certainly created for me the impression that he genuinely wished to resolve the issues and return to work. ... I am of the clinical view that Mr Lynch is a highly functioning, intelligent and capable individual who has developed symptoms of acute distress and anxiety, probably satisfying criteria for an adjustment disorder with anxiety (DSM 309.24) and that it is a set of work related circumstances which have been directly causal with respect [to] his dysfunction.

61. Dr Lawrence provided a further medical certificate on 27 February 2008 stating that Mr Lynch’s adjustment disorder had resolved and he was ‘fit for suitable duties’ from 29 February 2008 until 30 April 2008.

ORAL AND WRITTEN EVIDENCE FROM OTHERS INCLUDING STAFF OF ACT HEALTH

62. Ms Baker, Director of Business Support, provided the following evidence:
    • On 31 May 2007, Ms Baker was asked by Mr Lynch to intervene in some workplace issues Mr Lynch was having with a workmate, formerly a close friend, who Mr Lynch said was refusing to speak to him. When Ms Baker did so, the workmate said ‘he raised concerns of bullying and harassment by Roger.’ When she followed up with Mr Lynch, he said ‘things were settled and he felt comfortable.’
    • On 21 June 2007, when Ms Baker had seen the letter of complaint, she realised that as six out of 10 staff in Biomedical Engineering had signed the letter, and the complaints concerned harassment and bullying, matters on which ACT Health has a zero tolerance policy, the matter was serious and needed careful handling. She spent about an hour in Ms Bower’s office, a senior human relations (HR) advisor, discussing options. She recalled agreeing that it was appropriate to proceed to step two in Section K of the Certified Agreement given the number of people making claims; the diversity of the claims; and the fact that ACT Health had been pushing an anti-bullying policy. She acknowledged, however, that the previous session with Mr Lynch in August/September 2006 was a contributory factor in deciding to proceed to step two.
    • At the 21 June meeting it was agreed that Ms Bower would prepare a draft letter for Mr John Brown to give to Mr Lynch. She confirmed that as the delegate, she also authorised Mr Brown, in conjunction with HR, to proceed with an investigation in relation to the matters alleged. She said she could not provide her instrument of delegation but said she had been told she was the delegate by Ms Bower.
    • She understood that under Section K of the Certified Agreement she had two options: to deal with the matter informally; or to deal with it in a formal fashion. She also confirmed that Ms Bower had said taking the formal step would not result in Mr Lynch’s dismissal but ‘would make a mark.’ She did confirm that the letter to Mr Lynch from Mr Brown, which stated that there was the potential for the matter to lead to termination, could have been misleading and she had not taken any steps to counteract that impact by asking Mr Brown to tell Mr Lynch that termination was not in question. She confirmed that she had not seen a copy of the final letter until after Mr Brown had given it to Mr Lynch. She agreed that as delegate she did not advise Mr Lynch that the step had been taken to move to step two of the disciplinary process. She also said that since notification was to be undertaken by Mr Brown and she was the delegate she had been advised to remain remote from the process until the investigation had been undertaken.
    • On Friday 22 June 2007, when emailed by Mr Lynch to discuss the matter, Ms Baker sought advice from Ms Bower before responding to the email. Her response, which was that in view of the active process under way and given Mr Brown was handling the matter it was inappropriate for her to discuss the matter with Mr Lynch, was based on that advice. She did recommend Mr Lynch discuss the matter with the employee assistance counselling service of ACT Health or the HR section.
    • She confirmed that although she said to Mr Lynch in an email of 10 July 2007 that the discussion of 8 August 2006 was conducted under Section K of the Certified Agreement, she understood that in fact it was not a disciplinary proceeding. Rather the meeting was, as she said at the hearing, ‘just to reinforce an issue about a car.’
    • She acknowledged that the emails dated 29 June 2007 following her request for advice from Ms Bower as to whether ACT Health had complied with step one of the disciplinary procedures in the Certified Agreement were inconsistent with this view.
    • She denied in the hearing that she would have advised Mr Robertson to move to step two under the disciplinary procedures in the Certified Agreement on the basis that Mr Lynch had been counselled in accordance with step one in the informal discussion on 8 August 2006. She was unable to explain why she sought advice on 29 June about the effect of the 8 August 2006 meeting when she had already made the decision to move to step two..
    • She noted that in the days following 21 June 2007, Ms McKinnon had suggested that she speak with Injury Prevention and Management in order to assist Mr Lynch. She also acknowledged that she had never experienced anything like this investigation before.
    • She said she had not attempted to speak with any of the complainants before she made her decision because she thought it would ‘raise the heat of the situation.’ She also said, in fairness to Mr Lynch, she did not think it was appropriate to speak to all the complainants, since it was a group complaint and although she was aware some of the group may have been pressured into joining in the complaint, there was an investigation under way. However, she did meet with them, possibly in the week after the letter had been given to Mr Lynch. She also acknowledged that the allegations made in Mr Brown’s covering letter were vague.
63. Ms Bower, Senior Manager, Sterilising Services, ACT Health, formerly Senior Adviser for the Workforce Strategy Area of ACT Health, gave the following evidence:
    • On reading the letter of complaint, Ms Bower had formed the view that these ‘amounted to allegations of bullying and/or harassment’ which, under the ACT Health Code of Conduct and section 9 of the Public Sector Management Act 1999 (ACT), are serious matters and should not be tolerated in the workplace.
    • Although the six complainants had requested the matter be dealt with informally, she formed the view that their request was only one factor in deciding the appropriate response.
    • She recalled a previous issue with Mr Lynch in August 2006 concerning the use of the Biomechanical Engineering car and the Hospital’s car pooling arrangements which resulted in an informal counselling or disciplinary session with Mr Lynch on 8 August 2006. She said it was her view that this earlier discussion constituted an informal counselling discussion, following a lawful, reasonable direction by Mr Hill about use of the car, for the purpose of step one in clause 77 of the Certified Agreement. Given the number of Mr Lynch’s work colleagues involved and the seriousness of the current matter, Ms Bower had advised Ms Baker and Mr Brown that it was appropriate to deal with the matter under clause 78, that is, step two, of the Certified Agreement.
    • At the hearing, Ms Bower stated that the purpose of the email she sent to Ms Baker and Mr Brown on 29 June 2007, which concerned whether Mr Lynch's actions could come within ‘serious misconduct’ for the purposes of the Certified Agreement, was to query whether the conduct was ‘serious’. She acknowledged that this information was provided after Ms Baker had made her decision to institute formal proceedings under step two of the Certified Agreement. Ms Bower said her advice was that Mr Lynch’s conduct did not constitute ‘serious misconduct’.
    • Ms Bower also acknowledged at the hearing that although it would have been difficult for Mr Lynch to respond to the three allegations in Mr Brown’s letter of 21 June 2007, since they did not particularise the conduct said to constitute, for example, coercion, the dot points had been couched in a form which was allied with the behaviours listed in section 9 of the Public Sector Management Act 1994 (ACT). She also accepted that between Thursday 21 June 2007, when Mr Lynch was handed the letter, and Tuesday 26 June, when his response was expected, was at most two and a half working days. Ms Bower stated that if this was insufficient time for Mr Lynch he could have asked for an extension of time, however she conceded that there was nothing in the letter which indicated he could do so.
    • At the hearing she also said that the policy of ACT Health was that no notes need to be kept of an informal counselling session. This explained why no records would have been made of the 6 August 2006 discussions with Mr Lynch. It was not until formal processes were instituted that the requirement for written records in clause 75.5 of the Certified Agreement would be implemented. That was how the discipline process was administered within ACT Health.
    • On 25 June 2007, she participated in a meeting with Injury Prevention and Management, ACT Health, to discuss the duty of care the Hospital owed to Mr Lynch to provide him with suitable duties he could perform without prejudicing his health. On 26 June 2007, she was involved in the preparation of the letter to Mr Lynch directing him to leave the workplace.
    • She acknowledged that on 29 June 2007, at a meeting with Ms Baker and Mr Brown, there were discussions about the previous occasions on which staff had raised concerns about Mr Lynch’s behaviour but had requested that the issues not be taken further.
64. Mr John Brown, Manager, Clinical Engineering Section, Biomedical Engineering Department, provided the following evidence:
    • On 21 June 2007, Mr Brown was handed the memorandum of complaints by staff. Given the number of complainants and the seriousness of the complaints, he said he immediately sought advice from HR.
    • Following assistance from Ms Baker and Ms Bower to draft the covering letter, Mr Brown gave the letter and the memorandum of complaints to Mr Lynch. This was towards the end of that day when Mr Lynch was by himself in the mechanical workshop. He denied that it was in front of Mr Lynch’s work colleagues as asserted by Mr Lynch in his written statement. At the hearing, he recalled that he sought out Mr Lynch before going home that day but could not find him. He also admitted he was not the delegate for the purposes of clause 78 of the Certified Agreement but that he largely prepared and gave the covering letter to Mr Lynch as instructed.
    • On Friday 22 June 2007, at about 11.00am, Mr Brown saw Mr Lynch in the corridor and invited him into his office for a chat. Mr Lynch was with him only until 11.15am, and left despite his request for him to return, a refusal repeated when Mr Brown again reiterated his invitation at 12.45pm.
    • On Friday 22 June 2007, Mr Brown emailed Mr Lynch to propose a meeting on Tuesday 26 June 2007. Mr Lynch replied that he needed more time to contact his union representative, and Mr Brown then proposed the meeting be moved to Monday 2 July 2007. He said it was he who handed the direction by ACT Health for Mr Lynch to leave the workplace on Tuesday 26 June 2007. He delivered the letter to Mr Lynch at his desk.
    • Mr Brown said that the duty statement of Mr Lynch, despite not having been updated, was ‘still current’, but acknowledged that Mr Lynch ‘does normally do some electrical work, as all people in the team do.’ However, he said that Mr Lynch, in being certified unfit to perform mechanical duties, was in his view ‘unfit to perform a large part of his position.’
    • Mr Brown had been Mr Lynch’s manager for approximately 10 years, and he acknowledged that he had always found Mr Lynch to be a good workman and tradesman, thorough in his tasks and with a high standard of work. Mr Brown also acknowledged that Mr Lynch’s work performance report, dated 9 October 2007, referred to by Dr Warfe in his report of 12 October 2007, reflected this assessment.
    • In response to Mr Lynch’s complaints that the matter had not been properly investigated, Mr Brown said that he was still the investigating officer but since the matter had been to mediation, there was no longer an investigation in train. Mr Brown explained that while Mr Lynch remains on leave he has no right to direct Mr Lynch to come to a meeting and discuss the complaints. At the hearing, he acknowledged that no disciplinary action was taken against Mr Lynch.
    • Mr Brown also conceded that on 16 July 2007 he sent Mr Taunton, a former Director of the Biomedical Engineering department, an email asking ‘for anything that might suggest [Mr Lynch] was spoken to formally or informally’ about his behaviour on earlier occasions.

LAW

65. Under section 14 of the Act, Comcare is liable to pay compensation for an injury which results in incapacity for work. ‘Injury’ is defined expansively in section 5A of the Act to include a ‘disease’. A ‘disease’ means an ‘ailment’ or an aggravation of an ailment, and ‘ailment’ is defined in section 4(1) to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
66. A psychological injury is generally classified as a ‘disease’,[9] provided the ailment is ‘outside the boundaries of normal mental functioning and behaviour’.[10] Comcare conceded in its decision of 23 February 2008 that Mr Lynch suffered from a 'major depressive disorder', which is an ‘ailment’, and both parties have accepted this is correct (see “Medical evidence” earlier).
67. It is not clear whether the sudden onset of a psychological condition, such as occurred in Mr Lynch’s case, could equally be classed as an ‘injury’. The definition of ‘injury’ includes a ‘mental injury arising out of, or in the course of, the employee's employment’. In principle, there seems to be no reason why ‘a disturbance of the normal physiological state, or an ascertainable lesion or dramatic physiological change,’[11] an accepted meaning of ‘injury’, might not equally apply to an incident involving a sudden disturbance of the neurological state, leading to an ascertainable psychological change.[12] If that were the case, an applicant would need only to establish a temporal connection with employment, rather than the causal connection ‘to a significant degree’ required in the case of a ‘disease’.[13] Since this argument was not raised by the parties, and the Tribunal has found that the condition met the more stringent test for a 'disease' in section 5B, the issue will not be discussed further.
68. There is also no issue that Mr Lynch is an ‘employee’ as defined in section 5 of the Act. He is employed by the ACT Department of Health, an ACT Government Agency which is classified as a ‘Commonwealth authority’ for the purposes of the Act.[14] In turn a ‘Commonwealth authority’ is defined as a ‘licensee’.[15] Mr Lynch also provided a notice of his ‘injury’ as soon as possible as required by section 53 of the Act.
69. Mr Lynch’s workers’ compensation claim listed 26 June 2007 as the date of his injury. Comcare, however, conceded in its decision of 23 February 2008 that the correct date of injury should have been 23 June 2007, when Mr Lynch first sought medical treatment for the injury.[16] The Tribunal finds the concession was properly made.
70. The principal issues for consideration are whether there is no liability by ACT Health because, in their handling of Mr Lynch’s claim, any actions of ACT Health which were a significant cause of Mr Lynch's condition were ‘reasonable administrative action taken in a reasonable manner.’[17] In deciding this question it is necessary to examine the terms of the Certified Agreement since these set out the procedures to be followed when employees are disciplined. Both parties agree that the Certified Agreement provided the appropriate framework for any disciplinary action.
71. The procedures in the Certified Agreement apply ‘to the exclusion of provisions contained in Part IX of the PSM Act [Public Sector Management Act 1994 (ACT)]’, except in cases where the penalty is imprisonment or deduction of a pecuniary penalty.[18] Since Mr Lynch was not subjected to either of these penalties, Section K of the Certified Agreement provides for the relevant disciplinary procedures.
72. Clause 74.1 of the Certified Agreement states, as relevant:

74.1 Discipline action may be taken in any of the following circumstances where an employee:

(a) fails to meet the requirements set out in section 9 of the [Public Sector Management] Act 1994 (ACT);

(b) engages in conduct described in Workplace Relations Regulation 30CA...

73. Clause 75.1 provides that the procedures outlined in Clauses 77-80 are to be ‘implemented in so far as circumstances allow.’
74. Clause 75.2 provides:

The Delegate may, in circumstances where there are allegations of serious misconduct as defined in Workplace Relations Regulation 30CA, move to a later step in the procedures, including the final step (eg final warning or termination of employment) without going through any or all of the previous steps. In these circumstances, alternatives to counselling and warnings may be appropriate and may be taken by the Delegate before misconduct is determined. Such actions by the Delegate may include immediate transfer to other duties, suspension with or without pay, or re-allocation of duties.

‘Delegate’ is defined in clause 5.1:

Delegate means the Chief Executive or the person authorised by the Chief Executive to perform specific functions under this Agreement.

75. The relevant discipline procedures are set out in clauses 77-78, as follows:

Discipline procedures

77 Step One: Informal Discussion

77.1 Upon becoming aware of possible instances of misconduct that are likely to be resolved without more formal disciplinary action, the manager will informally discuss the particular behaviour with the employee as soon as possible. The manager should retain an informal record of the discussion eg diary entry.

77.2 In the event that the particular behaviour does not recur, the manager will not take the issue further under these procedures and will inform the employee of this decision.

Commencement of Formal Discipline Procedures

78. Step Two: Counselling and (if necessary) First Warning/Action.

78.1 Upon becoming aware of possible instances of misconduct by an employee, the manager will counsel the employee about the alleged misconduct to assist the employee to improve his or her conduct. Prior to counselling, the manager will:

(a) inform the employee of the nature of the alleged misconduct in writing, at least 24 hours prior to an interview being conducted, and of the correct conduct required;

(b) invite the employee to have another party present during counselling and allow reasonable opportunity for this to be arranged; and

(c) advise the employee that the manager will also have a witness present and that a record of the interview will be kept and the employee will be invited to sign the record of interview.

78.2 During counselling, the manager will:

(a) explain the nature of the alleged misconduct and the possible implications of the misconduct (i.e. the range of discipline actions being considered), and, if appropriate, formally warn the employee in writing of these possible implications;

(b) give the employee a reasonable opportunity to respond to allegations before forming a conclusion, (if not possible during the counselling, in light of the employee’s response to any allegations, the manager should as soon as practicable take any further action the manager considers necessary to establish the facts of the allegations. This may require a subsequent meeting);

(c) formulate a plan of action, including, setting out the required standards of conduct and other such steps designed to improve the employee’s conduct; and

(d) set out time frames for review of the employee’s subsequent conduct if appropriate.

78.3 A record of the interview will be provided to the employee and the employee will be given the opportunity to correct any inaccuracies and provide comments before signing the record. If the employee elects not to sign the record, then details of the offer will be clearly noted.

78.4 If a formal written warning is given, the employee will be clearly advised that that the counselling constitutes a “first warning” and that continuing misconduct (or a recurrence of the misconduct of a serious nature as defined in Workplace Relations Regulation 30CA) could result in discipline action up to and including dismissal.

78.5 Where misconduct is sufficiently serious then discipline action may be taken at this point up to and including termination of employment in accordance with clauses 80.4 and 80.5. If such action is being contemplated, the employee may also seek to have another party represent them in any discussions provided that the employee is also present.

Authority to take action under Certified Agreement

76. At the hearing, counsel for the applicant sought to establish that the disciplinary procedures under the Certified Agreement were not properly authorised. In particular, counsel sought a copy of the delegation under which Ms Bower had acted when she authorised Mr Brown to proceed to step two of the disciplinary process. Ms Bower was unable to provide a copy of her delegation at the hearing.
77. Decisions under clauses 77 (step one) and 78 (step two) of the disciplinary procedures are to be made by the 'manager', that is, 'a person who has responsibility for planning, organising and leading a work unit or group activity.’[19] For Mr Lynch, the Tribunal finds that those persons were Ms Baker, the Director of the Biomedical Engineering, and Mr Brown, his immediate supervisor.
78. Where ‘there are allegations of serious misconduct as defined in Workplace Relations Regulation 30CA’ a ‘Delegate’ may ‘move to a later step in the procedures ... without going through any or all of the previous steps.’[20] Counsel for Comcare undertook to provide the relevant delegation. Subsequent to the hearing, the Tribunal was provided with the current ACT Health Human Resources Delegations Manual (‘Manual’).[21] ACT Health was unable to provide the Delegations Manual in force in June 2007 since changes to delegation levels or relevant agreements are entered directly into the document. However, it was claimed by counsel for Comcare, and the Tribunal has no reason to dispute the claim, that the classification of persons to whom delegations were made in the current Manual would have been the same in 2007.
79. The Manual indicates that the ‘Delegate’ for decisions under clause 75.2 of the Certified Agreement is the ‘Executive Director of Human Resource Management’, a ‘Group 1’ position.[22] It is clear from the evidence that Ms Bower, Senior Advisor in the Workforce Strategy group, was not employed in a Group 1 position. In her written statement she says that her ‘Director and supervisor’ was David Robertson. The current Delegations Manual indicates that, for delegation purposes, Mr Robertson is in Group 2, not Group 1. On this evidence, therefore, not even Ms Bower’s immediate supervisor was a ‘delegate’.

79. There was also considerable confusion within ACT Health about who, in fact, authorised reliance on clause 78. Mr Brown said he was responsible for issuing the letter, but denied he was party to the decision to start disciplinary proceedings at step two. Ms Baker said she made the decision and was the delegate but she did not hold the delegation. Ms Baker said she drafted the substance of the letter and Mr Brown only had to put in the date on the letter. However, although she believed she was also a delegate and she relied on the fact that she had been told that this was the case, none of these persons was in fact a ‘Delegate’ for the purposes of the Certified Agreement clause 75.2. The result is that to the extent that the parties relied on clause 75.2 for authority for their actions, those actions were unauthorised.

80. The Tribunal is aware that collective decision-making within an agency does not easily correlate with strict principles relating to agency and delegation.[23] The Tribunal also notes recent jurisprudence indicating that courts and tribunals should take a practical and realistic approach to legislation in discerning a legislative intention that non-compliance with formal procedural obligations leads to invalidity, particularly where the effective outcome is not unfair.[24] If that principle applies to legislation, it should apply even more strongly to arguments based on contractual, not legislative, instruments such as certified agreements.
81. In any event, that deficiency is not central to the outcome in this case. The Tribunal can reach a conclusion in this matter without relying on whether there has been strict compliance with requirements for formal authorisation of decision-making under the Certified Agreement (see below). The Tribunal takes comfort from the fact that Mr Lynch ‘suffered no injustice by reason of [ACT Health’s] omission.’[25] Nonetheless, the Tribunal notes the considerable confusion among management within ACT Health about who had legal authority to make disciplinary decisions and which instrument was relevant for the purposes of the disciplinary processes. For example, Mr Brown’s covering letter of 21 June 2006 referred to section 9 of the Public Sector Management Act 1994 (ACT) as its source of authority. The Tribunal makes no findings on this issue.

Cause of depressive condition

82. The principal issue relates to the cause of Mr Lynch’s condition. Counsel for the applicant submitted that the injury was solely due to the allegations made by Mr Lynch’s work colleagues. In that event, so it was argued, provided his injury was contributed to, to a significant degree, by his employment,[26] it was compensable under section 14 of the Act. According to this argument, the proviso in section 5A(1) that there is no liability if the injury arose as a result of ‘reasonable administrative action taken in a reasonable manner’ did not apply since it was not administrative action which caused Mr Lynch's condition.
83. In the alternative, counsel for the applicant argued that if the disease was contributed to by administrative action, the injury was compensable because the administrative action was not reasonable and was not taken in a reasonable manner.[27] In each case, the Tribunal must establish these issues to its satisfaction, that is, on the balance of probabilities.[28]
84. Counsel for the respondent disputed that the actions of Mr Lynch's workmates could be looked at without taking account of the role of management. Counsel argued that administrative action was involved in the events of 21 June 2007 and that it was artificial to separate out the bad news learned as part of an administrative process from the process itself.

Disease contributed to, to a significant degree, by the employee’s employment (section 5B)

85. The facts indicate that the information conveyed to Mr Lynch on 21 June 2007 triggered his psychological condition, whether it is diagnosed as ‘major depressive disorder, single instance’, or ‘adjustment disorder with anxiety’. Mr Lynch said in his statement that, on the evening of 21 June 2007 when he went home, he felt stressed, anxious, began shaking and could not eat, concentrate or sleep. Corroboration of his reaction is provided by the contemporaneous notes of Dr Allan from Mr Lynch's consultation on 23 June 2007 that, ‘co-workers have complained about him and signed a petition’ and ‘says he feels shattered.’ These effects are indicative of an extreme reaction of distress to the news Mr Lynch received.
86. The issues are whether that reaction was due only to the actions of his workmates or whether action by management also contributed. Whatever caused the reaction and led to his condition, the cause or causes must either separately or in combination have been contributed to, to a significant degree, by Mr Lynch’s employment. If that test is met, the next issue is whether, even if it is found that management action contributed to the condition, Mr Lynch’s disease was ‘suffered as a result’ of that action. Finally, if that question is answered in the affirmative, the next question is whether the action was ‘reasonable administrative action taken in a reasonable manner’.

Cause of condition

87. Although the evidence indicates that, to a significant extent, Mr Lynch’s immediate reaction was due to the allegations in the memorandum of complaint, the Tribunal accepts that management action also played a part. Mr Lynch would not have received the complaints if ACT Health had not decided to act on them and institute disciplinary action. It was that step by management which also contributed to Mr Lynch's distress. As Mr Lynch appreciated, formal disciplinary action would have an impact on his position in Biomedical Engineering. As he said in his statement, 'I feared for my career and my future and didn’t know how I was going to face work the next day.’
88. Unlike other cases in which distinct operative causes occurred at different times, the causes in this case are inextricably linked and their impact occurred simultaneously.[29] Accordingly, it is artificial to attempt to separate out the content of the allegations from the actions of ACT Health in accepting the claims and taking action on them. As Martin CJ noted in Swanson v Northern Territory[30], in a matter on comparable facts that applied legislation based on the Commonwealth Act:

No doubt the fact of the allegations [by some of Mr Swanson's pupils] operated on the mind of the appellant and could be regarded as a “cause” of his injury. However, the summoning [of Mr Swanson by the principal] and imparting of the information was also a cause and the injury was “a result of” that reasonable administrative action. The effect or consequence of the summoning and imparting of the information was the suffering of the injury.[31]

89. The Tribunal finds, on the balance of probabilities, that the cause of Mr Lynch’s psychological disorder were the effects of the memorandum of complaint and the imparting of that information by Mr Brown, in combination with the news that as a consequence of the complaint disciplinary action was being instituted.

‘Significant degree’

90. For a ‘disease’ to be compensable, there must be a contribution, ‘to a significant degree, by the employee’s employment’.[32] ‘Significant degree’ is defined to mean ‘a degree that is substantially more than material.’[33] Provisions in these terms were introduced into the Act on 13 April 2007, following the passage of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 which inserted section 5B into the Act.
91. The history of the 'disease' provision is relevant in understanding the intention behind the amendment. Immediately prior to 13 April 2007, the former section 4(1) defined liability for ‘disease’ as requiring that employment ‘contributed... in a material degree’ to the disease. As the Explanatory Memorandum to the legislation noted, amendment to this provision was made because:

Since the enactment of the SRC Act in 1988, “material degree” has been interpreted in court and tribunal decisions so as to erode significantly the extent to which employment must have contributed to the contraction or aggravation of the disease for it to be compensable.[34]

92. What amounted to a ‘material contribution’ was considered in Comcare v Sahu-Khan[35] by Finn J who endorsed the decision of the Full Federal Court in Comcare v Canute[36] that the expression was ‘intended to require that the contribution be “more than a mere contributing factor”’.[37] As His Honour put it, the inclusion of the term ‘material’ imposed an ‘evaluative threshold below which a causal connection may be disregarded’.[38] Finn J concluded that the correct test for ‘in a material degree’ was probably best captured by the meaning in the Shorter Oxford English Dictionary as ‘4. In a material degree; substantially, considerably’[39] and that ‘in a material degree’ required an evaluation of all relevant factors.[40]
93. Following that decision, amendments to the Act required for a finding that there is a 'disease' that the employment must have contributed to a ‘significant degree’. In turn, 'significant degree' was defined as ‘substantially more than material’,[41] thus adopting the meaning favoured by Finn J. The amendment also provided that the definition should take into account the list of relevant factors in section 5B(2).[42]
94. Applying these factors to the circumstances of Mr Lynch, his adjustment disorder was, on the evidence, triggered by the allegations in the memorandum of complaints, delivered under cover of Mr Brown’s letter on 21 June 2007, which explained that disciplinary action was being instituted against him. Mr Lynch had been employed by ACT Health for 18 years; he took pride in his work and gave evidence of a number of testimonials attesting to his efforts. Mr Brown’s work performance report noted that he was a good workman and tradesman, thorough in his tasks and with a high standard of workmanship. The allegations in the memorandum of complaints were made by six of his workmates, some of whom had, at previous times, been his good friends and for whom, over a lengthy period, he had been an occupational health and safety delegate and union representative. For these reasons Mr Lynch said he felt betrayed by their actions.
95. Prior to these events, Mr Lynch’s evidence, which the Tribunal accepts, was that, with the exception of his week off work in September 2006, which according to his evidence was due to a viral condition or flu exacerbated by his concern about management action, Mr Lynch had enjoyed a happy and healthy lifestyle. The Tribunal is satisfied on the balance of probabilities that his indisposition in September 2006, nearly ten months prior to the events of June 2007, did not have any lasting impact on his psychological condition. There appeared to be no other factors which would account for the development of his psychological condition. In summary, Mr Lynch’s condition arose in a work context, in the workplace, involving work colleagues and management, over work issues. All medical experts agreed in evidence that it was the events of 21 June 2007 which caused his condition. The Tribunal has not identified any other cause for the development of his adjustment disorder. On that basis, the Tribunal finds on the balance of probabilities that action by his workmates in combination with action by management contributed to, to a significant degree, the adjustment disorder suffered by Mr Lynch.
96. Before liability can be established, however, it is necessary for the ‘disease’ to come within the definition of 'injury' in section 5A. In particular, was liability denied because although contributed to by employment, the disease was, according to the proviso to section 5A(1), ‘suffered as a result of reasonable administrative action taken in a reasonable manner’? There are three elements of the proviso:

(1) was the operative cause of Mr Lynch's condition due to 'administrative action';

(2) was his condition suffered ‘as a result of’ administrative action; and

(3) was that administrative action ‘reasonable administrative action taken in a reasonable manner’.

‘Administrative action’

97. What amounts to ‘administrative action’ is defined only to the extent of the examples given in section 5A(2). These refer to performance appraisal, counselling, suspension or disciplinary action and 'anything done in connection with' any of these examples.[43] The examples are not exhaustive and the words 'in connection with' have been interpreted as words which 'have an ambulatory significance capable of a wide range of applications.’[44] These indications imply that ‘administrative action’ is capable of having a broad meaning.
98. To date, the case law has largely been based on cases arising under the expression ‘administrative action’ in comparable legislation, in particular in South Australia, the Northern Territory and in Tasmania.[45] In summary, the cases establish that administrative action can be constituted by a series of actions as opposed to merely one action. But if the injury arises from the worker’s inability to comply with the ordinary demands of the workplace – for example, the nature of the work causes stress - rather than from some specific instruction or demand of the employment, the expression has no application. As Doyle CJ said in Workcover Corporation of SA v Summers:

[T]he words ... “administrative action” do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties....[46]
[S]tress caused by an inability to cope with the job itself ... is not stress which arises wholly or predominantly from administrative action taken by the employer in connection with the worker’s employment.[47]

99. In other words, ‘administrative action’ must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer. Applying these principles to the circumstances faced by Mr Lynch, the Tribunal finds that not only action by management itself in instituting disciplinary procedures, but also the action of Mr Lynch's fellow employees which set in train the management action, that is, something done ‘in connection with’ disciplinary action, are capable of being categorised as 'administrative action' for the purposes of the Act.

‘As a result of' management action

100. In Hart v Comcare,[48] Branson, Conti and Allsop JJ concluded that for a cause of the injury to be 'as a result of' administrative action within the proviso to section 5A(1), the administrative action must have materially contributed to a condition.[49] In Swanson v Northern Territory, Martin CJ indicated that the expression 'as a result of' in the comparable Northern Territory legislation should be ‘given its ordinary and natural meaning’ and that the operative cause did not have to be the ‘predominant or sole cause’.[50] These decisions establish that although the administrative action need not be the main or sole cause of the injury, it must have materially contributed to the condition.
101. What amounts to a material contribution has been considered by the courts in the context of the pre-2007 amendments relating to the meaning of ‘in a material degree’ in the former section 4(1) of the Act.[51] Following the amendments to the Act in 2007 referred to earlier, a material contribution must be a significant contribution.[52] Significant means material and more than de minimis. However, the 'as a result of' test in the proviso to section 5A(1) is less demanding than the ‘substantially more than material’ (emphasis added) test of what is contribution to a ‘significant degree’ (section 5B). Quantifying these distinctions is a question of fact and degree in each case.
102. Where, as here, management action combined with action by workmates to contribute to a ‘disease’ (section 5B), and that contribution has been found to be ‘substantially more than material’, there is a degree of artificiality in assessing whether the cause of the ‘disease’ meets the less demanding 'as a result of' threshold for the purposes of section 5A(1). Nonetheless, it is possible that one or more operative causes under section 5B will not meet the test of 'as a result of' administrative action. That may be because the action is not administrative action, or because the contribution of the action is minimal. In this case, however, since the Tribunal has found that the actions by Mr Lynch’s workmates and of ACT Health in informing Mr Lynch of the complaints and in taking disciplinary action were inseparable, and in combination contributed to Mr Lynch's condition to a degree which was significantly more than material, Mr Lynch's psychological condition also met the less demanding ‘as a result of’ test for section 5A(1).

‘Reasonable administrative action taken in a reasonable manner’

103. The principal issue is whether the examples of administrative action taken by ACT Health that affected Mr Lynch are 'reasonable' for the purposes of section 5A(2). The statutory definition of ‘reasonable administrative action’ contains several limbs. Counsel for Comcare did not preclude reliance on several of the limbs. However, the focus of the arguments was on section 5A(2)(d): ‘a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment’,[53] and section 5A(2)(e): ‘anything reasonable done in connection with an action mentioned in paragraph... (d)’. Both parties accepted these were the relevant provisions.
104. What is ‘reasonable disciplinary action’ must be assessed in light of the rules of conduct or behaviour which apply to and are enforceable against an employee by virtue of their employment by the Commonwealth.[54] In Mr Lynch's case, these principles require recourse to the rules of conduct or behaviour found in section 9 of the Public Sector Management Act 1994 (ACT); in the ACT Health’s anti-discrimination, harassment and bullying policy, Working Together: Shaping Our Future With Our People; and in the disciplinary procedures of the Certified Agreement.
105. In terms of enforcement, there are sanctions to enforce breaches of the rules of conduct and behaviour in section 9 of the Public Sector Management Act 1994 (ACT).[55] A pre-requisite to imposition of a sanction is that the person be charged with a breach of section 9. Mr Lynch was not charged with a breach of section 9. Procedures for managing claims of bullying and harassment are set out in the ‘Procedures’ section in Part 2 of the Working Together policy document. These procedures provide for disciplinary action under appropriate legislation, the common law or the ACT Health Discipline Procedures. No reliance was placed on enforcement options under this policy. The source of the actions taken by ACT Health in relation to Mr Lynch is the Certified Agreement, specifically ‘Section K – Discipline’. Clause 73.4 of the Certified Agreement provides ‘[t]hese procedures apply to the exclusion of provisions contained in part IX of the PSM [Public Sector Management Act 1999 (ACT)] Act’.
106. Whatever disciplinary action is to be taken must be ‘reasonable’. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful.[56] What is reasonable is assessed objectively and relates to the specific conduct involved.[57] Dr Campbell explored the concept of reasonableness in Re Georges and Telstra Corporation Ltd:

I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound [sic] of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less nor more than might be expected, tolerable, fair.[58]

107. In addition, for ‘administrative [or disciplinary] action’ to be reasonable, it must be established that there was nothing ‘untoward’ about the actions involved.[59] The actions must also not be ‘irrational, absurd or ridiculous’.[60]
108. Allowing for the qualification in clause 75.1 that the discipline procedures ‘will be implemented in so far as circumstances allow’, the steps in the discipline procedures in the Certified Agreement are normally to be taken progressively, with informal discussions at step one (clause 77), preceding counselling and if necessary, first warning or action at step two (clause 78). The procedures are based on fair process principles.[61] Broadly, these translate into a warning at step one of the process, to give officers an opportunity to redress identified misbehaviour before facing the more serious consequences entailed in step two.
109. There is an exception in clause 75.2. This clause gives the ‘Delegate’ a discretion to move to a later step in the procedures without going through any or all of the prior steps 'in circumstances where there are allegations of serious misconduct as defined in Workplace Relations Regulation 30CA’. That discretion must be exercised by the ‘Delegate’. Actions which may be taken in cases of ‘serious misconduct’ without prior counselling and warning include ‘immediate transfer to other duties, suspension with or without pay, or re-allocation of duties’.[62]
110. Counsel for Comcare argued that management should start with step one only where employers become ‘aware of possible instances of misconduct that are likely to be resolved without more formal disciplinary action’.[63] Otherwise, management can resort to step two in the first instance. Counsel for Mr Lynch rejected this interpretation on the basis that, first, such an interpretation was to take an unnecessarily legalistic approach to the agreement, and, second, unless an attempt has been made to assess whether counselling or less formal disciplinary action would be adequate, and this had not been essayed in Mr Lynch’s case, omission of step one was not warranted.
111. The Tribunal accepts that as Madgwick J said in Kucks v CSR Ltd:

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.[64]

112. The Tribunal finds that this intention is discernible in the terms of clauses 75, 77 and 78 of the Certified Agreement. Clause 75.2 refers to the circumstances in which a finding of serious misconduct as defined in the Workplace Relations Regulation 30CA warrants a 'move to a later step in the procedures, including the final step (eg final warning or termination of employment) without going through any or all of the previous steps.’ Such a finding warrants, so clause 75.2 provides, 'alternatives to counselling and warnings ... before misconduct is determined.’ The reference to 'counselling and warnings' relates to step two in clause 78 which is headed 'Counselling and ... First Warning/Action', and later steps. It is not appropriately applied to step one in clause 77 which is headed '... Informal Discussion'.
113. The terms of clause 75.2, therefore, apply only to formal discipline procedures which commence with step two. That finding is consistent with an intention of drafters with 'a practical bent of mind'. If matters are not 'serious misconduct' so that they could lead to the serious consequences listed in that clause, and if they are likely to be resolved informally, there is no need to consider alternative steps. It is only when misconduct is of a more serious nature that formal steps are warranted and an assessment must be made whether counselling or first warning (clause 78) is an adequate response or a more draconian penalty as found in step 3 or beyond is required. Clause 75.2, therefore, applies to step two and later steps in the processes, but not to step one. It follows that in applying the discipline procedures there can be an initial recourse to step two either relying on the misconduct being 'serious misconduct' as defined, or when step one would be ineffective because the misconduct is 'not likely to be resolved without more formal disciplinary action'. This was not how ACT Health interpreted the provision and there appears to be a degree of confusion among those involved about the administration of the disciplinary procedures under the Certified Agreement.
114. This leaves two questions: did Mr Lynch's conduct amount to 'serious misconduct' as defined; or was Mr Lynch's misconduct such that it was unlikely to be resolved without more formal disciplinary action? 'Serious misconduct' is defined in regulation 30CA. The evidence does not suggest that Mr Lynch’s behaviour falls within either regulation 30AC(1)(b) or (2)(a). The issue is whether his behaviour falls within regulation 30AC(1)(a) or (2)(b). Since disciplinary action was commenced on 21 June 2007, it is the evidence up to and including that day which must be considered.
115. There is no evidence of any specific lawful and reasonable instruction which Mr Lynch refused to carry out as required by regulation 30AC(1)(d). Mr Hill, Mr Lynch’s former supervisor emailed him to confirm whether Mr Lynch understood Mr Hill had given him a direction in relation to use of the pool car. However, Mr Lynch's evidence was that in 2006 there were no allegations that he had failed to follow a direction. Ms Bower said the meeting in 2006 was about use of the car and she did not mention any direction to Mr Lynch. Since Mr Hill did not give evidence, the email can be given little weight and the Tribunal is not satisfied that Mr Lynch had not failed to comply with 'any specific lawful and reasonable instruction'.
116. That leaves the question of whether the alleged behaviour of Mr Lynch fell within regulation 30AC(1)(a), ‘wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment’. In determining the meaning of regulation 30AC(1)(a), the Tribunal notes that the conduct covered in regulation 30AC(1)(b)-(d) involves matters which would attract criminal or civil liability,[65] result in serious risk to health or reputation,[66] or would lead to termination of employment.[67] In other words, the behaviour involved is at the higher end of the misconduct scale. Interpreted in context, this would suggest that it is only ‘wilful, or deliberate, behaviour by an employee’ of sufficient seriousness to lead to employment being terminated or would result in civil or criminal liability which is intended to be covered.
117. However, this is not the end of the matter. An assessment of the level of seriousness of Mr Lynch’s behaviour can also be gauged by examining ACT Health documents relating to harassment or bullying. ACT Health’s Anti Discrimination, Harassment and Bullying Policy Working Together: Shaping Our Future With Our People does provide a graduated list of eight possible outcomes for substantiated cases of bullying or harassment.[68] The outcomes, in order of seriousness, span withdrawal of the complaint and a change of behaviour to disciplinary action which may lead to termination. Termination is the final and most serious of the possible outcomes of such a complaint and as such would clearly only be imposed if other outcomes have been tried unsuccessfully, or in the most serious of cases.
118. The graduated approach to cases of misconduct also underpins the disciplinary processes in Section K. This reasoning suggests that in order for bullying or harassment to be ‘wilful, or deliberate, behaviour by an employee’ so as to amount to ‘serious misconduct’ and justify termination of the contract of employment, the behaviour must be of a particularly serious nature. No sanction has ever been imposed on Mr Lynch. Nor have investigations of his conduct been concluded. Although the complaints against Mr Lynch were regarded as serious, the failure to pursue any action against Mr Lynch, much less civil or criminal action, indicates that they did not amount to 'serious misconduct'. On that basis, ACT Health could not have relied on the 'serious misconduct' exception to commence formal disciplinary procedures.
119. Once again this is not the end of the matter. An alternative approach is that formal processes were warranted because the matters alleged in June 2007 were unlikely to be resolved without taking more formal disciplinary action. This also requires an examination of the evidence available to ACT Health. The relevant evidence must be considered as at 21 June 2007, when disciplinary action commenced. Underpinning the complaints were interpersonal conflicts between Mr Lynch and the six complainants. The substance of the complaints made by the six complaints is outlined in their statements. However, those statements were not before ACT Health on 21 June. The evidence which Mr Brown, Ms Baker and Ms Bower relied on was confined to the nineteen matters listed in the memorandum of complaints; the fact that six out of the ten or so workmates of Mr Lynch had made the complaint; and their own prior knowledge of Mr Lynch's behaviour in the workplace.
120. On 21 June 2007, ACT Health was facing a personnel issue. It was serious in nature given the number of people who were prepared to make the complaint. It was also known that ACT Health had a zero tolerance policy to harassment and bullying the workplace. However, whether harassment or bullying had occurred had not been established. It was known to management that on several previous occasions there had been complaints from staff about Mr Lynch’s behaviour, including at least one complaint about harassment and bullying, but the staff concerned had requested the matter not be taken further. In other words, there was some evidence of earlier interpersonal conflict, but not of sufficient seriousness for management to take action. The relationship problems between Mr Lynch and Mr McClymont in which Ms Baker was asked to intervene was apparently settled without her assistance.
121. It was known that Mr Lynch did not respond well to confrontation. At the 8 August 2006 meeting between Ms Bower, Ms Baker and Mr Lynch in which Mr Lynch had disagreed with some of the views being put to him by Ms Bower and Ms Baker, he was offered an opportunity for further input at the end of the meeting but declined and left. He was also 'offered input at a later time’ but apparently did not respond.
122. At the hearing, the evidence did not focus on whether Mr Lynch was likely to respond to informal counselling, so the Tribunal has limited evidence on this issue. Nonetheless, inferences can be drawn from Mr Lynch’s behaviour subsequent to the hearing. In that context, the Tribunal notes that when invited by Mr Brown on Friday 22 June to have discussions with him, Mr Lynch only attended for 15 minutes and declined to attend a meeting later that day. Equally, Mr Brown in his work performance report relating to Mr Lynch of 9 October 2007, that is, after the events that are the subject of this review, indicated that Mr Lynch ‘has had significant issues with a number of work colleagues’ and ‘does not appear to deal well with confrontation’ and that ‘rather than having a face to face discussion to resolve the issue he deals with this sort of issue by taking it through his manager as a management issue’. Dr Warfe’s evidence was also that Mr Lynch ‘demonstrated ... little insight into the nature of the conflict with his fellow workers’, suggesting that he may have been less likely to accept their views if put to him in an informal session.
123. Given evidence indicating that Mr Lynch did not respond well to views at meetings with which he did not agree; that he resisted attempts to resolve matters after such meetings; and the inferences to be drawn from his behaviour as referred to in the previous paragraph; the Tribunal finds that it was unlikely that the matter would have been able to be resolved informally. The Tribunal notes too that although initially the six complainants had requested that the matter be handled informally and Ms Timbrell had also been of the opinion that this was the appropriate strategy, subsequently the complainants changed their minds, leading Ms Bower to set in train a formal investigation. This evidence, coupled with the statements by Mr Brown and Ms Bower that due to the number of the complainants, and the nature of the allegations this was the most serious case they had faced, the Tribunal is prepared to find that on 21 June 2007 ACT Health was justified in regarding the situation as sufficiently serious to justify proceeding directly to step two in the disciplinary procedures. The Tribunal finds there was nothing untoward about the decision, nor was it irrational, absurd or ridiculous. It follows that the Tribunal finds that taking this step was reasonable administrative action.

Was the disciplinary action taken in a reasonable manner?

124. In Re Georges and Telstra Corporation Ltd Dr Campbell addressed the issue of what it means to take action ‘in a reasonable manner’. As he put it:

[T]he fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that may flow as the consequence of such administrative action being taken. In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further the circumstances of the individual that could have become known by simple enquiry should be considered. ...[W]hile the assessment of ‘ in a reasonable manner’ relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee [is] usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instruction that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action ... taken.[69]

125. The circumstances known by management on 21 June 2007 about Mr Lynch have been considered in the discussion under ‘reasonable administrative action’. Mr Lynch initially complained that he was handed the letter in view of his workmates which was ‘embarrassing and unprofessional’. At the hearing he resiled from this statement and agreed that his receipt of the letter was in an open area adjacent to the workshop where most of the complainants had desks, and he did not know whether any of them were there at the time or had seen the interchange. In those circumstances, the manner of notifying Mr Lynch of the complaints was not unreasonable.
126. Counsel for Mr Lynch also argued that management should not have moved to the notification step without prior testing of the allegations, particularly in cases of bullying and harassment. Step two of the disciplinary procedures does, however, appear to allow for this to occur. The step is taken only in relation to ‘possible instances of misconduct’ and the opportunity is provided for the employee to refute the allegations in the ensuing interview. In Mr Lynch’s case, Ms Baker had been consulted in May 2007 about the relationship problems between Mr McClymont and Mr Lynch and she knew that Mr McClymont had alleged ‘harassment and bullying’ by Mr Lynch. In the preliminary discussions between Mr Brown, Ms Baker and Ms Bower on 21 June, information was available about earlier instances of complaints about Mr Lynch’s behaviour, complaints which the other employees had specifically asked not be taken further. Management was also entitled to take account of the seriousness with which ACT Health regarded allegations of misconduct of bullying and harassment. In those circumstances, and given the unusual step of a group complaint, there was sufficient information to raise the possibility of misconduct which should be investigated in a disciplinary process.
127. It was also argued by counsel for the applicant that two and a half working days notice was inadequate time for Mr Lynch to respond to the complaints. Since the Certified Agreement only specified 24 hours notice and there was an intervening weekend which was not included in the two and a half days, the Tribunal considers the time allowed was reasonable.
128. Should Mr Lynch have been given any warning of the proposed disciplinary process? Would such a warning have prevented him suffering the acute reaction which is detailed in his evidence and in the medical reports? The answers raise both factual and legal issues.
129. It is clear that Mr Lynch was unaware that his work colleagues held such views. As he said in evidence following receipt of the allegations, he felt ‘shattered’ and ‘betrayed’. When he came into the workplace on 19 September 2007 and was called in to Ms Baker’s office he said in response to her asking how he was that he felt ‘gutted’. The allegations did come as a shock to Mr Lynch.
130. Nonetheless, at a practical level, it is unlikely that management could have anticipated Mr Lynch’s severe psychological reaction. His own evidence was that prior to the events of June 2007 he enjoyed a healthy and happy lifestyle. The medical witnesses agreed that he had no predisposition to anxiety. Although, he had taken a week’s leave for medical reasons, in September 2006, on his own evidence this was because at the time he was rundown and had a flu or viral disorder. Nor was any diagnosis of a psychiatric condition made at that time by his treating practitioner. On his return to work following that week, Ms Baker asked how he was and he said he was fine. So management had no reason to anticipate a predisposition to psychological disorder.
131. At a more formal level, the procedures in the Certified Agreement do envisage informal counselling in clause 77 and this step would fulfil the need for a warning of impending formal action. The Tribunal has found, however, that in this case, management was justified in moving to step two without going through the informal counselling process. Moreover, Mr Lynch’s reaction to the group complaint is a not unnatural reaction to such an event although it was at the extreme end. In summary, management’s failure to give Mr Lynch some informal warning about the impending processes did not amount to handling the notification in an unreasonable manner.

NATURAL JUSTICE

132. Since the fairness of action is also an element of its reasonableness,[70] there is overlap between the requirements of natural justice and the requirement that ‘administrative action’ must be ‘reasonable’. Nonetheless, at least one fairness issue will be discussed at this point.
133. The formal processes under clause 78 were complied with. Mr Lynch was notified of the alleged misconduct, and advised through the attachment of the correct conduct required. He was also given an opportunity to comment on the allegations at the interview scheduled for the following Tuesday, and to be accompanied by a witness. An attachment to Mr Brown’s letter of 21 June 2007 set out clause 78 of the Certified Agreement, the ACT Health Code of Conduct and section 9 of the Public Sector Management Act 1994 (ACT). These procedures met aspects of the content requirements of natural justice.
134. There remains an issue as to whether Mr Lynch was provided with adequate notice of the complaints on which the disciplinary action was based. Counsel for the applicant urged that the dot points in Mr Brown’s covering letter which summarised the allegations in the attached memorandum of complaints were insufficiently precise to permit an understanding of the case to be met, contrary to natural justice principles.[71]
135. For the notice to contain adequate information, generally requires specification of the complaint in sufficient particularity to enable the person affected to know the case they have to meet, that is, the ‘particular act, matter or thing alleged as the foundation of the charge’.[72] In cases where livelihood is at stake a higher level of particularity is required.[73] As Davies J said In Arafura Seafood Products v Landos[74]:

A well recognised element of procedural fairness is that a person against whom allegations are made ought to be given sufficient particulars of the allegations to enable him to understand their nature and ambit and to be able to answer them. What is required is not the evidence that may be received in support of the allegations or particulars of that evidence but particulars of the allegations themselves.

136. In circumstances where allegations are based on imprecise notions such as ‘bullying’ and ‘harassment’ particularity may be especially important.[75] The ACT Health Anti Discrimination, Harassment & Bullying Policy defines ‘harassment’ and ‘workplace bullying’ as follows:

Harassment is defined as any form of behaviour that is unwelcome, offensive, humiliating, or threatening; or creates an atmosphere that is offensive, humiliating or threatening; and that, in the circumstances, a reasonable person should have expected would offend, humiliate or intimidate. Harassment may occur even when there was no intention to cause offence.
Workplace bullying can be defined as the repeated, less favourable treatment of a person/s by another person/s which may be considered unreasonable and inappropriate workplace practice. Bullying behaviour can be characterised by continued aggressive behaviour that intimidates, humiliates or undermines a person/s. Bullying can involve the deliberate misuse of power, and can come from persons at level, above or below the recipient in the hierarchy.

137. The ACT Health Working Together: Shaping Our Future With Our People policy also defines those terms in Appendix 1. The definition of workplace bullying is in substantially similar terms to those in the ACT Health Anti Discrimination, Harassment & Bullying Policy. However, the definition of harassment varies to a considerable degree, a matter which has the capacity to cause confusion for officials implementing these policies:

Harassment is behaviour that:

• Another person does not want and does not return;
• Offends, humiliates or intimidates the other person/s and that, in the circumstances, a reasonable person should have expected would offend, humiliate or intimidate them; and
• Targets them for less favourable treatment because of their (or their friends’ or relatives’) sex, race, disability, sexuality, age, pregnancy, or any of the other grounds covered by anti discrimination legislation.

Harassment may occur even when there was no intention of causing offence. Harassment is a form of discrimination when based on one of the attributes defined under the Discrimination Act (ACT) 1992 (i.e. on the basis of age, sex, marital status, race etc.).

138. Not only do the definitions of harassment differ, making it difficult for an employee to know which to apply, but they are expressed at a level of generality that requires elaboration if an employee accused of either harassment or workplace bullying is expected to comply.
139. The memorandum of complaints was sent under cover of a letter from Mr Brown. That letter listed as alleged examples of ‘inappropriate and unprofessional behaviour’ that

you:

• Display consistent bullying and harassing behaviour in the in the [sic] workplace.
• Do not retreat [sic] co-workers within Biomedical Engineering with courtesy and sensitivity.
• Have coerced co-workers within Biomedical Engineering.

140. The Tribunal finds that these statements on their own would not give sufficient particulars to a recipient to enable that person to prepare a response. However, the covering letter was intended to be read in conjunction with the nineteen complaints contained in the memorandum of complaints.
141. An examination of the nineteen matters in the memorandum, however, is little more enlightening. Many are expressed in the form of conclusions. For example:
     • The constant harassment towards members of staff he has singled out.
     • That staff members have been bullied on numerous occasions because of personal issues, and are fearful and feel threatened by him.
     • His continued disrespect of other staff colleagues.
142. Some do not appear to fall within either ‘bullying’ or ‘harassment’. For example:
     • The fact that our families also suffer at home because we are taking our problems home.
     • That he pursues petty personal disagreement with individual staff members through management in the guise of OH&S or discrimination issues.
     • His constant refusal to attend any Biomed organised functions. He purposely leaves the workshop if a morning tea or afternoon tea is arranged and takes leave if a lunch function is organised.
     • He neglects routine jobs, his motivation being to attract adulation of staff he is doing manufacturing work for.
     • He solicits manufacturing work so he can occupy his time doing work, ‘’he enjoys”.
       
143. Others are not sufficiently particular:
     • When working with him you fear you are under constant surveillance, with him ready to pounce on any errors of judgement, with a report going to the Manager.
     • His personal agendas towards colleagues, which is stressful and destructive to those affected.
144. Even allowing for the fact that a memorandum of complaint by workmates could not be expected to be couched in a form which might meet natural justice requirements, Mr Brown’s covering letter should have taken this into account and made a more precise and detailed list of allegations.
145. ACT Health had implemented formal disciplinary procedures. The letter from Mr Brown emphasised the significance of such proceedings in the covering letter of his statement that the consequences could lead to termination of employment. In these circumstances, Mr Lynch was entitled to expect a level of particularity in the notice to which he had to respond. That particularity is absent from the notice Mr Lynch received. In those circumstances he was denied the natural justice which was a requirement underpinning the disciplinary processes in the Certified Agreement. Ordinarily that would have been a basis for the Tribunal to find that the decision under review should be set aside since this element of the fairness requirement under ‘action... taken in a reasonable manner’ would not have been complied with. However, in the result, the complainants did prepare detailed submissions dated 16 and 23 July 2007 for the purpose of the mediation which took place in October 2007. In those circumstances, there has been sufficient notice, and Mr Lynch did not suffer practical injustice.[76]
146. The decision under review will be affirmed.
     

I certify that the 146 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member

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

C. Kocak, Associate

Date/s of Hearing 29 September to 1 October 2009

Date of Decision 20 January 2010

Counsel for the Applicant Max Spry

Solicitor for the Applicant Howes Kaye Halpin Solicitors

Counsel for the Respondent Andrew Berger

Solicitor for the Respondent Australian Government Solicitor

---

[1] Exhibit A10.
[2] Exhibit A2.
[3] Ibid.
[4] Ibid.
[5] Exhibit A7.
[6] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 7(4).
[7] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A.
[8] Ibid
[9] William van Oostveen v Comcare [1998] FCA 1124 (Full Court); Moi v Comcare [2006] AATA 726.
[10] Comcare v Mooi (1996) 69 FCR 439, 444.
[11] Australian Postal Corporation v Burch (1998) 85 FCR 264, 269.
[12] Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547, 553, paraphrasing Dixon CJ’s description of the related concept of ‘injury by accident’. See also Australian Postal Corporation v Burch [1998] FCA 944; (1998) 85 FCR 264, upholding on appeal the decision in Australian Postal Corporation v Burch (1998) 26 AAR 312.
[13] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B.
[14] By Commonwealth Gazette S252, 1 July 1994, the ACT Public Service was declared to be a 'Commonwealth authority' for the purpose of the Act.
[15] ‘Licensee’’ means ‘a Commonwealth authority’: Safety, Rehabilitation and Compensation Act 1988 (Cth) Act s 4(1).
[16] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 7(4).
[17] Ibid, s 5A(1),(2).
[18] Certified Agreement, above n 8, cl 73.4.
[19] Certfied Agreement, cl 5.1.
[20] Certified Agreement, cl 75.2.
[21] ACT Health, Human Resources Delegations Manual (2007).
[22] Ibid, Attachment: ‘Officers who have an Authorisation for approval of powers and functions under the Certified Agreements’, 1.
[23] R Creyke, J McMillan Control of Government Action: Text Cases & Commentary (2nd edn, 2009) 8.5.4- 8.5.17.
[24] Minister for Immigration and Citizenship v SZIZO and Others [2009] HCA 37; (2009) 259 ALR 405 at paras 32- 36. See also Lansen v Minister for Environment and Heritage (2008) 174 FCR 14.
[25] Minister for Immigration and Citizenship v SZIZO and Others [2009] HCA 37; (2009) 259 ALR 405 par 35.
[26] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B.
[27] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(2).
[28] McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 358; Repatriation Commission v Smith (1987) 15 FCR 327.
[29] cf Comcare v Caldwell [2008] FCA 2015; Georges v Telstra Corporation Ltd [2009] AATA 731; Wiegand v Comcare Australia [2006] FCA 1620; and Wiegand v Comcare Australia (No 2) [2007] FCA 237.
[30] (2006) 204 FLR 392.
[31] Ibid, para 101.
[32] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(1).
[33] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(3).
[34] The Hon. Kevin Andrews, Explanatory Memorandum: Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill (2006), iv.
[35] (2007) 156 FCR 536.
[36] [2005] FCAFC 262; (2005) 148 FCR 232, para 12.
[37] Ibid, 542.
[38] Ibid, 542.
[39] Ibid, at para 15.
[40] Ibid, at para 16.
[41] Safety, Rehabilitation and Compensation Act 1988 s 5B(3).
[42] See also Explanatory Memorandum, above n 34.
[43] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(2)(e).
[44] Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203, para 106, per Black CJ, French and Weinberg JJ.
[45] Workcover Corporation of South Australia v Summers (1995) 65 SASR 243; Abrahams v St Virgil’s College [1998] TASSC 53; Wattyl Australian Pty Ltd v York [1997] NTSC 86; HIH Winterthur Workers Compensation (SA) v Hickman [1997] SAWCT 17.
[46] Workcover Corporation of South Australia v Summers (1995) 65 SASR 243, 247.
[47] Ibid, 248.
[48] Hart v Comcare (2005) 145 FCR 29.
[49] Ibid, 33-34.
[50] Swanson v Northern Territory (2006) 204 FLR 392, para 100..
[51] Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232, paras 63- 66, per French and Stone JJ; Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536, paras 14- 16, per Finn J; Weigand v Comcare (No 2) [2007] FCA 237, paras 3- 6, per Finn J; and Comcare v Caldwell [2008] FCA 2015, para 5, per Perram J.
[52] Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 and the discussion at paras 53- 54 in the reasons.
[53] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(2)(d).
[54] Comcare v Chenhall (1992) 37 FCR 75.
[55] Public Sector Management Act 1994 (ACT) ss 179, 186 and Part 9.
[56] Comcare v Chenhall (1992) 109 ALR 361.
[57] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[58] Ibid, para 22, per Dr Campbell.
[59] Re Gilbert and Comcare [2009] AATA 224, para 33, per DP Hack.
[60] Repatriation Commission v Webb ( 1987) 76 ALR 131, 135, per Beaumont J.
[61] Certified Agreement clause 73.2 specifically requires that ‘[t]hese procedures must be applied in accordance with the principles of natural justice and procedural fairness and in a manner that promotes the values and general principles of the ACTPS’ [ACT Public Service].
[62] Certified Agreement clause 75.2.
[63] Certified Agreement clause 77.1.
[64] Kucks v CSR Ltd (1996) 66 IR 182.
[65] Regulation 30CA(1)(c).
[66] Regulation 30CA(1)(b).
[67] Regulation 30CA(1)(d).
[68] Exhibit A12.
[69] Re Georges and Telstra Corporation Ltd [2009] AATA 731, para 23.
[70] Re Inglis and Comcare (1997) 49 ALD 183, 184.
[71] Ansell v Wells [1982] HCA 58; (1982) 43 ALR 1; Hurt v Rossall (1982) 43 ALR 252; Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297.
[72] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489, per Dixon J.
[73] R v Pharmacy Board of Victoria; Ex parte Broberg [1983] 1 VR 211; Kelson v Forward (1995) 60 FCR 39; Hall v University of New South Wales [2003] NSWSC 669; R v Solicitors’ Disciplinary Tribunal; Ex parte L [1988] VR 757; Robb v Chief Commissioner of Police [2005] VSC 310, paras 68- 69.
[74] Arafura Seafood Products v Landos (1988) 16 ALD 519, 520.
[75] Kelson v Forward ( 1995) 60 FCR 39, 58-59, 64.
[76] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14, per Gleeson CJ.