Henderson v Comcare [2011] FCA 839 (28 July 2011)

Last Updated: 9 August 2011

FEDERAL COURT OF AUSTRALIA

Henderson v Comcare [2011] FCA 839

Citation:		Henderson v Comcare [2011] FCA 839
Appeal from:		Henderson and Comcare Australia [2010] AATA 700
Parties:		JUDITH HENDERSON v COMCARE
File number:		VID 872 of 2010
Judge:		JESSUP J
Date of judgment:		28 July 2011
Catchwords:		ADMINISTRATIVE LAW – Administrative Appeals Tribunal – Whether omission to deal with submission on particular point amounted to error of law – Relevance of strength of point – Whether Tribunal obliged to refer specifically to a point of obvious weakness
Legislation:		Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A
Date of hearing:	16 June 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	22
Counsel for the Applicant:	Mr M McInnis with Mr M Carey
Solicitor for the Applicant:	Clark Toop Taylor
Counsel for the Respondent:	Mr J Wallace
Solicitor for the Respondent:	Thomsons Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 872 of 2010

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	JUDITH HENDERSON Applicant
AND:	COMCARE Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	28 JULY 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 872 of 2010

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	JUDITH HENDERSON Applicant
AND:	COMCARE Respondent

JUDGE:	JESSUP J
DATE:	28 JULY 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The decision under appeal was given on 15 September 2010, and related to a claim by the applicant, Judith Anne Henderson, for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of an adjustment disorder suffered by her in 2007 in the course of her employment as Manager, Safety and Well-being in the Melbourne office within the People’s Strategy area of Science Management in the Defence, Science and Technology Organisation. The respondent to the proceeding in the Tribunal, and to the present appeal, was and is Comcare Australia, by which compensation would be payable if the applicant were successful.
2. The question which was controversial in the Tribunal was whether the ailment suffered by the applicant was an “injury” within the meaning of the Act. The definition of “injury” was to be found in s 5A of the Act, which relevantly provided as follows:

(1) In this Act:
injury means:
(a) a disease suffered by an employee;
....
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.

It was common ground before the Tribunal that the ailment suffered by the applicant was a “disease” within the meaning of s 5A(1)(a), and that, save for the matters that were in contention, the applicant would have been entitled to compensation.

3. What was contentious in the Tribunal was whether the applicant’s disease fell within the terms of the exclusion for which the concluding lines of s 5A(1) provide. The question was whether her ailment had been suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. The Tribunal held that it had, and the applicant now submits that that holding was infected by errors of law.
4. Before the Tribunal, the respondent put forward four events that were said to amount to “administrative action” within the meaning of the definition of “injury” in the Act. The Tribunal held that three of them, occurring on 25 July, 8 October and 24 October 2007 respectively, did amount to “administrative action”. The Tribunal then considered whether the administrative action constituted by the event of 25 July 2007 was reasonable, and was taken in a reasonable manner. The Tribunal held that it was, in both respects. The Tribunal next held that this action was “taken ... in respect of [the applicant’s] employment” within the meaning of the definition of “injury” in the Act, and that the applicant’s ailment was suffered as a result of that action. The Tribunal’s conclusion was, therefore, that a circumstance existed which activated the exclusion in the definition, and that it was not necessary to consider whether the exclusion was activated also by the events of 8 and 24 October 2007, relying in this respect upon Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29.
5. Of the many questions of law which were said – by the applicant in her Notice of Appeal – to arise in respect of the Tribunal’s decision, the first with which counsel for the applicant dealt was the following:

Did the Tribunal fail to deal with a submission seriously advanced and relevant to the issue before the Tribunal that the senior manager’s complaint and the threat to veto salary progression conveyed to the Applicant was not action within the exclusionary proviso?

The corresponding ground of appeal was as follows:

The Tribunal was obliged to deal with a submission seriously advanced and relevant to the outcome of the review that the communication to the Applicant by her supervisor of a complaint about the failure to return a telephone call and subsequent threat to veto her salary progression made by a senior manager was action that could not be within the exclusionary proviso. The uncontradicted evidence was that the manager who made the threat had no power to do so, had made the threat based on an assumption of certain facts which were erroneous, and from a conclusion concerning the conduct of the Applicant which he had failed to investigate and which the supervisor who passed on the threat in the meeting of 25 July 2007 had adopted without enquiring as to the truth of the basis. On the evidence of the Applicant, not contradicted by the Respondent, she had attempted to return the telephone call, the subject of the complaint, in a manner which the Respondent’s witness, a Human Resources manager accepted would not constituted [sic] a basis for any relevant complaint. This threat was complained of by the Applicant as a cause of her injury to medical practitioners and medical experts in distinction to other actions in that meeting.

As will be apparent, this ground alleged a failure by the Tribunal to deal with a submission seriously advanced on behalf of the applicant.

6. The factual context for this ground of appeal was as follows. The event of 25 July 2007 to which I have referred was a meeting at which the applicant was counselled about her performance. Some time previously, it appears, while the applicant’s immediate supervisor, Mr Cavanagh, was absent on leave, a manager in the relevant section, Mr Taylor, had telephoned the applicant about matters which were of importance to him, and which, it seems, he considered ought to have been of importance to the applicant. The applicant was not available to take the calls and, according to Mr Taylor, she did not return the calls. This led to Mr Taylor speaking both to Mr Cavanagh and to Mr Cavanagh’s immediate supervisor, Ms Lindley (who also reported to Mr Taylor) about the applicant’s performance. It seems uncontroversial that Mr Taylor made some observation, both to Ms Lindley and to Mr Cavanagh, to the effect that the shortcomings in the applicant’s performance might, or should, have consequences in the context of a forthcoming salary progression to which she otherwise had a conventional expectation. Mr Taylor’s concerns were related to the applicant by Mr Cavanagh, in the presence of Ms Lindley, at the meeting on 25 July 2007.
7. In the applicant’s case before the Tribunal (at least so far as appears from the evidence drawn to my attention in this proceeding), she submitted that Mr Taylor had threatened to stop, to halt, or to veto, her salary progression on account of the performance shortcomings about which he expressed concerns to Ms Lindley and Mr Cavanagh. In written submissions made to the Tribunal, it was proposed on behalf of the applicant that Mr Taylor had no power to take this step under the applicable industrial agreement – the Defence Collective Agreement (DeCA) 2006-2009, which governed the matter of salary progression. Under the industrial agreement, it was an employee’s “second-level supervisor” who had the decision whether to approve, or to withhold approval of, salary progression. Eligibility for progression, and performance criteria, were set out. It was the relevant second-level supervisor who had the function of deferring progression, if the employee in question were rated only as “partially effective”. In the circumstances of the present case, it was Ms Lindley, as the supervisor of the applicant’s supervisor (Mr Cavanagh), who carried these functions and responsibilities. That circumstance gave rise to the submission made on behalf of the applicant, both in the Tribunal and in the present proceeding, that Mr Taylor had no “power” to stop the applicant’s salary progression. It was put, therefore, that his threat to do so could not form the basis of “reasonable administrative action taken in a reasonable manner” for the purposes of the exclusion in the definition of “injury” in the Act. The applicant said that, to the extent that the meeting of 25 July 2007 contributed to her ailment, it was that threat, as conveyed to her by Mr Cavanagh, which was the substantial operative factor, and if the threat itself could not be regarded as “reasonable administrative action taken in a reasonable manner”, it could not be said that her ailment was suffered to any extent from administrative action of that kind.
8. In its reasons for decision, the Tribunal did not deal with the applicant’s point about Mr Taylor lacking the power to stop the applicant’s salary progression under the industrial agreement. With respect to the questions whether the action taken on 25 July 2007 was reasonable, and whether it was taken in a reasonable manner, the Tribunal said:

Section 5A(2) of the SRC Act lists examples of action that might be described as reasonable administrative action for the purposes of s 5A(1) of the SRC Act, but is preceded by the words without limiting that subsection. The Tribunal accepts Mr Cavanagh’s evidence that after receiving the complaint from Mr Taylor he was required, as Ms Henderson’s supervisor, to discuss the matters with her and to provide the necessary feedback on these and other concerns that had been raised by senior management. The Tribunal concludes that the administrative action in holding the meeting to provide informal counselling and to discuss the complaint and other aspects of feedback on Ms Henderson’s performance was lawful and appropriate in the circumstances. Therefore the Tribunal finds that the 25 July meeting was reasonable administrative action.

The Tribunal accepts that during the meeting Ms Henderson became upset and was distressed at the nature of the complaints by Mr Taylor and by the feedback provided by Mr Cavanagh more generally about issues raised by senior management. However after hearing evidence from Ms Henderson and Mr Cavanagh, and examining his contemporaneous diary entries, the Tribunal is satisfied that the meeting was conducted in a professional manner and was held in private. Discussion of the issues that had been raised by senior management was conducted in a rational manner and Mr Cavanagh had given Ms Henderson adequate opportunity to respond. The diary notes suggest that the meeting covered areas where improvements could be made to Ms Henderson’s performance and included a range of possible solutions such as mentoring and improved communications. Ms Henderson’s telephone call to Ms Lindley later that day appeared to be based on the substance of Mr Taylor’s complaint and other issues rather than the conduct of the meeting. For these reasons the Tribunal finds that the administrative action was taken in a reasonable manner.

It was submitted on behalf of the applicant in this proceeding that the Tribunal had failed to deal with the point made on her behalf as to Mr Taylor’s absence of power, and that this constituted an error of law.

9. It is true that the Tribunal did not deal with the point in terms, but one cannot, in my view, take the next step and conclude that this amounted to an error of law without understanding the nature of the evidence, and the content of the parties’ cases, before the Tribunal. One should commence with what the evidence showed as to Mr Taylor’s actual statements to Ms Lindley, and to Mr Cavanagh, and then deal also with the terms in which those statements were conveyed to the applicant.
10. In her witness statement received in evidence by the Tribunal, Ms Lindley said:

I recall a particular incident when Mr Cavanagh had been absent and I had received a complaint from the Senior Line Manager, Mr Martin Taylor, about the Applicant’s lack of professionalism in failing to return his calls. Mr Taylor had complained to me that he had tried to contact the Applicant on various occasions and had not received a reply. The Applicant had reported to Mr Taylor that as she was at a conference at the time of his calls, she did not consider it necessary for her to return his calls. Mr Taylor had advised me that he was extremely disappointed in the Applicant’s behaviour, particularly as she was the Safety Officer onsite and should have returned his call given that the matter could have concerned a safety issue. Mr Taylor commented that he considered this behaviour should be reflected in Ms Henderson’s next performance review. I recall Mr Cavanagh having a discussion with the Applicant in respect of Mr Taylor’s comments.

The Applicant had then called me in person to complain about Mr Taylor’s comments about her and noted that as Mr Taylor was not her direct supervisor, his comments could not influence her performance appraisal or her prospects of being promoted. I advised the Applicant, that whilst Mr Taylor was not her direct supervisor, he was mine, and that his comments would be taken into account when I was assessing the Applicant’s overall performance.

Mr Taylor’s comment to Ms Lindley was not that he would stop the applicant’s progression, but that he considered that her behaviour “should be reflected in [her] next performance review”. When Ms Lindley said, at the end of the first paragraph set out above, that she recalled Mr Cavanagh having a discussion with the applicant in respect of Mr Taylor’s comments, she was referring to the meeting of 25 July 2007. The discussion which is the subject of the second paragraph set out above was, it seems, had between Ms Lindley and the applicant some time after that meeting (probably later on the same day, but the exact timing is of no moment). Again, Ms Lindley acknowledged, in her discussion with the applicant, that it was not Mr Taylor who would directly affect the salary progression, but that his comments might be taken into account by herself when she was assessing the applicant’s performance.

11. Examined in chief on this subject, Ms Lindley further described the telephone conversation which she had with the applicant in the immediate aftermath of the meeting of 25 July 2007 as follows:

I think I had – and I can’t remember whether this was two different conversations, I remember one of them happening, but it could well have been in two parts. Judy – I had told Judy that Martin – and I’ll use first names, if that’s okay – I’d said that Martin was concerned and upset about that lack – the return of the phone call, and I – we had a conversation about what the impact of his concerns would be. And I said to her that he had certainly said to me that he thought that it was bad enough that it would mean that she shouldn’t be considered fully effective, therefore shouldn’t be progressed, or – and I guess more importantly, it would be a confidence and a performance issue. She asked me – told me that that wasn’t fair, and in fact he had no right to do that – and in some ways that’s true, because in the PFADs thing, that there’s a supervisor and a second line – the second manager. However, because – I explained that it was because Martin was my direct manager, certainly his views were something that I would take into account. I didn’t say that – what I would do about it, but it was certainly something that would inform my decision on – in the feedback that I gave.

The matter was not usefully taken any further in cross-examination, save that Ms Lindley acknowledged that Mr Taylor could not “formally” threaten to block the applicant’s salary progression.

12. In his witness statement which was received in evidence by the Tribunal, Mr Cavanagh recalled specifically the events leading to the meeting on 25 July 2007, and related them as follows:

As I was the Applicant’s manager, I had been requested by senior managers to provide her with feedback in respect of her behaviour. I recall, in particular, an incident with Mr Martin Taylor, an SES Officer, who was our Assistant Secretary of Science Corporate Management at the time. He had requested that I speak with the Applicant about her failing to return his telephone call, which occurred whilst I was on leave. Given that the Applicant had not retuned [sic] Mr Taylor’s telephone call, he was underprepared for a meeting, as the Applicant had not provided him with the necessary information required at the meeting. I recall approaching the Applicant and asking that she come and speak with me about her failure to return Mr Taylor’s phone call, at which she sarcastically replied in front of her colleagues, that she was not required to return Mr Taylor’s call, as she was in training. I then requested that the Applicant come and speak with me in private about this issue.

Mr Cavanagh made notes of the terms in which the concerns were raised by Mr Taylor, which included the following:

He is inclined to recommend no salary progression unless you can demonstrate an improvement in the relationship with the executives etc. We need to include something that is reasonable in JH PFADS.

Counsel for the respondent suggested that the “you” referred to in this passage was Mr Cavanagh himself, not the applicant. “JH” was, of course, the applicant; and “PFADS” was Performance Feedback Assessment and Development Scheme. Under cross-examination, Mr Cavanagh was asked whether Mr Taylor had told him that the applicant’s performance progression could be “deferred”, and he responded that Mr Taylor had said “that he was inclined not to support her progression claim”. It was put to him, in the light of the fact that Mr Taylor had no power to affect the applicant’s progression, that it was unfair of him to pass on to her Mr Taylor’s comment that her progression could be deferred, to which Mr Cavanagh responded:

The comment I made, that I passed on, was to make Ms Henderson aware of the severity of this situation and that Mr Taylor had made that comment. Whether or not he could or couldn’t was not discussed at that time. It was simply a way of ensuring that Ms Henderson understood how serious the senior manager thought this was.

When it was put to Mr Cavanagh that it would be unfair to suggest that Mr Taylor had such a power to affect the applicant’s progression, Mr Cavanagh replied:

Well, I didn’t suggest that. I purely passed on his comment, which was saying I’m inclined not to support her salary progression.

13. Nothing in the evidence before the Tribunal to which I have referred to above, and nothing otherwise drawn to my attention by counsel for the applicant, provided any basis for a finding that Mr Taylor had threatened that he would stop, halt or veto the applicant’s salary progression, or would take any similar action. There was no evidence that he ever threatened to take a step, or to purport to perform a function, which was not his under the industrial agreement. On the material to which I have been referred in this proceeding, the notion that Mr Taylor had threatened to stop the applicant’s salary progression appeared only in the final submissions made in the Tribunal on behalf of the applicant. That was a submission which conspicuously lacked an evidentiary foundation. In an ideal world, perhaps, the Tribunal would have dealt with the submission, as I have been obliged to do here. However, it is not unusual, in courts and tribunals at every level, that submissions which self-evidently go nowhere, or which are manifestly based upon a misunderstanding of the evidence, are not addressed in the written reasons for decision ultimately delivered. That this submission, which was, on any view, one of little substance, was rejected by the Tribunal in the brief reasons which it gave on the point in question (see para 8 above) is an implication which readily arises from those paragraphs, and from a consideration of the material generally to which I have referred above. In my view, there was no error or law in the way the Tribunal decided the point.
14. I would also hold, to the extent that the applicant’s submissions are to be understood as squarely raising the point, that there was no error of law in the Tribunal’s actual determination of the question whether the conveying to the applicant of Mr Taylor’s concerns, and his forebodings with respect to her prospective salary progression, rendered the action taken on 25 July 2007 less than reasonable, or taken in a less than reasonable manner.
15. The next argument advanced on behalf of the applicant related to the event of 24 October 2007, which was again a meeting. As articulated in the applicant’s Notice of Appeal, the relevant ground was that the Tribunal had failed to deal with submissions seriously advanced before it, and, specifically, had not dealt with the submission that the meeting of 24 October 2007 could not come within the exclusionary provision in the definition of “injury” for various reasons which were set out. Submissions in support of this ground were not developed by counsel on behalf of the applicant who, instead, focused upon what was said to be an internal contradiction in paras 23 and 25 of the Tribunal’s reasons of 15 September 2010, as follows:
    23. In the circumstances the Tribunal concludes that the decision by senior management to ask Mr Cavanagh to convene a meeting with Ms Henderson about concerns following the site visit by Comcare and about feedback on Ms Henderson’s behaviour generally, was a specific and lawful action by management in the course of Ms Henderson’s employment, so the 24 October meeting constitutes administrative action by DSTO for the purposes of the SRC Act.

....

25. In the circumstances the Tribunal concludes that the request for information was part of a general discussion between Ms Henderson and Mr Cavanagh about the proposed leave, and was not a specific action by management in the course of Ms Henderson’s employment, so the 24 October meeting does no constitute administrative action by DSTO for the purposes of the SRC Act.
    

The Tribunal’s conclusion in para 23 was that the meeting of 24 October 2007 “constitutes administrative action by DSTO for the purposes of the SRC Act”. The conclusion in para 25 was that the same meeting did not constitute such action.

16. The explanation for this oddity appears readily from an understanding of the structure of the Tribunal’s reasons. In that part of its reasons which include paras 23 and 25, the Tribunal addressed each of the four events to which I have referred above, and expressed its conclusion as to whether they constituted “administrative action” within the meaning of the definition of “injury”. In paras 21-22, the Tribunal referred to the evidence with respect to the meeting of 24 October 2007, the third event to which I have referred. Paragraph 23 followed, in which the Tribunal stated its conclusion on the question of “administrative action” in relation to that meeting. In para 24, the Tribunal set out certain aspects of the evidence in relation to the fourth event, which occurred later in 2007. The Tribunal’s conclusion in para 25 related to the fourth event, not the third. The reference to the “24 October meeting” is self-evidently no more than an error which was not corrected in proofing. Ultimately counsel for the applicant accepted that this must be so, and that the apparent inconsistency with para 23 gave rise to no question of law.
17. The final ground agitated on behalf of the applicant related to the Tribunal’s determination of the question whether the applicant’s ailment was suffered as a result of the administrative action constituted by the event of 25 July 2007. The Tribunal’s conclusion on this issue found expression in the following paragraph of its reasons:

The Tribunal accepts that Ms Henderson was distressed at the nature of the complaint by Mr Taylor regarding the threat to her salary progression. However, as Mr Cavanagh’s diary notes demonstrate, she was also upset and felt unsupported by senior management over the range of issues raised by Mr Cavanagh as relayed by management. The Tribunal concludes that, based on the evidence including reports by relevant medical professionals, the matters discussed at the 25 July meeting including the complaint by Mr Taylor and feedback on other issues raised by senior management contributed directly to her adjustment disorder. Therefore the Tribunal finds that the condition was suffered as a result of the administrative action.

In the applicant’s reading of this paragraph, it is implicit that the Tribunal relied upon reports by relevant medical professionals in support of its conclusion that the event of 25 July 2007 contributed directly to her ailment. In the relevant ground of appeal, the matter was put in the following terms:

There was no evidence from any medical expert that any complaint had been made of distress, emotional symptoms or upset from the specific event occurring on 25 July 2007, other than the threat of denial of salary progression, upon which to base such a conclusion. There was no evidence of any causal connection in the medical evidence upon which the Tribunal stated it relied that identified any contribution from matters discussed other than the unreasonable the [sic] threat to veto salary progression.

18. In the hearing before the Tribunal, medical reports were received into evidence, but none of the authors of those reports was examined, or cross-examined, vive voce. One such report was by Dr A Webster, an occupational physician, given on 18 December 2007. That report contained the following paragraph:

In July 2007 when she was informed by Mr Cavanagh that Mr Taylor was not satisfied with her lack of phone contact she was also advised by Mr Cavanagh that Mr Taylor had had feedback from the Melbourne executive that she was ineffective in her role and that her salary progression would be vetoed by Mr Taylor. She was upset at the time. She advised Mr Cavanagh that Mr Taylor could stick the salary progression. She advised she was disappointed and deeply hurt. That night however she did ring Ms Lindley and advised what had transpired and from that telephone conversation she understood that Mr Taylor had no role in the salary progression and Ms Lindley confirmed this. She also understood that Mr Taylor was a strong man with firm opinions and it was hard to change his views and perceptions. She advised Ms Lindley that the role clarity would still be required. She states Ms Lindley indicated she could hear she was upset on the telephone call and that they would need to have a further conversation about what needs to happen.

Self-evidently, this passage in Dr Webster’s report set out part of the factual history provided to him by the applicant. In that part of his report headed “Assessment” Dr Webster said:

Ms Henderson documents difficulties in early 2007 with executives whom she provides consultancy service to. She reports there was no action taken and that there are ongoing issues with these executives. She documents a number of incidents that I have reported in this history.

Ms Henderson now appears to be suffering from an Adjustment Disorder and is still having difficulty. She is still emotionally fragile. For her to progress she needs to have mediation with Mr Cavanagh in good faith and have outstanding issues resolved and a developed plan for a way forward.

Ms Henderson will require role clarity of her position description with accountabilities in writing so that this can be utilised as part of her communication with executive level employees so her roles and responsibilities of safety are clear to all.

Asked to provide his diagnosis, Dr Webster said that the applicant suffered from an “adjustment disorder with depression”. Asked to set out the basis upon which he made that diagnosis, Dr Webster said:

Ms Henderson has had significant stressors which she relates to employment and she presents in such a manner that she is tearful, upset, agitated and appears mildly depressed.

There was, in my opinion, sufficient in the report by Dr Webster to justify the conclusion of the Tribunal which I have set out in para 17 above.

19. On 11 February 2009, the applicant saw a psychiatrist, Dr Michael Epstein. According to Dr Epstein’s report of 11 February 2009, he was told by the applicant that, in July 2007, “she was further upset following a miscommunication between her and a senior manager and took two days off work.” In the present proceeding, counsel for the respondent submitted that this was a reference to the event of 25 July 2007, and counsel for the applicant did not resist that suggestion. Dr Epstein’s opinion was that the applicant developed a chronic mild adjustment disorder, with depressed mood and anxiety, “in the context of what she regarded as workplace harassment that led to her ceasing work in November 2007”. He said that events occurring between November 2006 and September 2007 could “be regarded as significant and contributing factors”. I consider that Dr Epstein’s report, taken with the other medical and lay evidence which was before the Tribunal, provides support for the Tribunal’s conclusion as expressed in the passage set out in para 17 above.
20. On 30 November 2009, a psychologist, Damien Adler, provided a report with respect to the applicant. He first saw the applicant on 30 June 2008. In his report, Mr Adler said that, at the commencement of treatment of the applicant, she provided a “verbal description of the series of events that have led to her compromised mental health”. According to Mr Adler, the applicant reported concerns with respect to her workplace, the conduct of her colleagues, and the subsequent events, including the following:

That she was called to account for not attending to a request by a senior staff member when that was not, in her view, part of her responsibilities. Furthermore that it was indicated by a senior staff member that this would adversely affect her salary progression.

Although noting that he was neither sufficiently informed nor appropriately qualified to comment on whether the applicant’s perceptions of the events which she related to him was accurate, Mr Adler continued:

From a psychological perspective however I can confirm that these events, as perceived by Mrs Henderson, have had a significant adverse effect on her mental health and wellbeing.

Self-evidently, the event of 25 July 2007 was within those related to Mr Adler by the applicant, and utilised by him in reaching that conclusion. I consider that Mr Adler’s report, together with the other evidence which was before it, provided support for the Tribunal’s conclusion as set out in para 17 above. I would, therefore, reject the submission made on behalf of the applicant that there was no evidence before the Tribunal which could provide support for its conclusion that the matters discussed at the meeting of 25 July 2007, including the complaint by Mr Taylor, and feedback on other issues raised by senior management, contributed directly to the applicant’s adjustment disorder.

21. To the extent that the passage from the relevant ground of appeal, which I have set out in para 17 above, might alternatively be read in the more limited sense as alleging want of evidence with respect to the contribution of matters discussed at the meeting on 25 July 2007 “other than the unreasonable ... threat to veto salary progression”, I would reach the same conclusion. In the absence of any of these medical, or psychological, practitioners having being called to clarify his report, I would not accept a “no evidence” submission to that effect. In terms, the reports were sufficient to sustain the more general conclusion expressed by the Tribunal in its reasons. I would, in addition, refer to my earlier rejection of the applicant’s ground that there was at any time a “threat to veto salary progression” made by Mr Taylor. The rejection of that ground substantially, if not entirely, undermines the more limited form of the present ground which the applicant’s Notice of Appeal, on one view, might be understood to express.
22. For the above reasons, the appeal will be dismissed. Counsel for the applicant accepted that, if this should be the outcome of the proceeding, there was nothing which might incline the court not to follow the conventional course with respect to costs.
    

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 28 July 2011