Two recent decisions by the Administrative Appeals Tribunal (AAT) shed light on when the AAT will find action taken by an employer to be 'reasonable administrative action' or 'reasonable disciplinary action'. If such actions are found to have contributed to an injury claimed by an employee, the claim may be excluded from the definition of 'injury' under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The two decisions handed down by Senior Member Friedman are Re Steuregger and Comcare Australia [2009] AATA 757 and Re Bui and Australian Postal Corporation [2009] AATA 803.
Re Steuregger
The case of Re Steuregger indicates that there is a wide range of employer actions capable of being considered 'reasonable administrative action'.
The issues for consideration in this case were:
- Whether the employee's aggravation of her Post Traumatic Stress Disorder (PTSD) was contributed to, to a significant degree, by her employment.
- If so, was the ASD excluded from compensation because it resulted from the 'reasonable administrative action' of her employer?
Mrs Steuregger was a victim of an armed robbery in 2000 causing her PTSD. She joined the Department of Defence five years later. Mrs Steuregger alleged that her PTSD was aggravated while at the Department by the configuration of the office desks facing the wall and by her manager's habit of tapping her on the shoulder. She also alleged the PTSD was aggravated by aggressive treatment by management after she removed her name from the register of persons authorised to handle classified documents (without seeking prior approval) and further aggressive treatment regarding this issue at her performance review.
Significantly, Mrs Steuregger agreed that a symptom of her PTSD was memory loss, and that it could cause her to misconstrue information.
The AAT found that there was no significant contribution from Mrs Steuregger's employment to her condition. The AAT noted that the initial claim form listed one incident said to have caused her condition, yet a later statement contained a 'litany of additional unsubstantiated and mostly generalised complaints'. The AAT also accepted the evidence from various managers outlining that there had been no aggressive behaviour toward Mrs Steuregger, and that that they had done everything possible to accommodate her needs.
The AAT went on to state, briefly, that 'the actions by officers as described in these reasons constitute reasonable administrative action, so that the aggravation would be excluded under section 5A(1) of the SRC Act'. The decision suggests that a broad range of conduct could be characterised as 'reasonable administrative action' within the meaning of section 5A of the SRC Act.
Re Bui
Re Bui involved consideration of the predecessor provisions relating to injury, which excluded 'reasonable disciplinary action' from the definition. The employee was a manager of an Australia Post shop in Melbourne for nine years. The employer raised a number of concerns about the employee's work performance and subsequently conducted a Warning Counselling interview. The employee claimed compensation for depression, stress and anxiety arising from the disciplinary process.
The various allegations against the employee included an alleged unauthorised self-payment of $80 for spectacles, stock losses of books and stamp booklets valued at over $5,000. The employee gave evidence explaining these incidents. She accepted that she could not produce supporting documentary evidence in response to some allegations, but she stated that she could not be held responsible for 'everything'.
The employee pointed out that she had previously enjoyed working for Australia Post, the performance indicators for the shop were positive, and that some of the events to which the allegations related had occurred some time ago. Apparently, circumstances changed when a new Acting Area Manager was appointed, and the employee took the view that this person did not like her.
Australia Post's Manager of Corporate Human Resources gave evidence to the AAT. He stated that he was given a briefing of concerns regarding the employee, including on the stock loss issues and her incompetence. He gave evidence that he recommended Warning Counselling occur because the allegations included a possible loss of revenue. He gave evidence that the levels within the Employee Counselling and Discipline Process are not a series of hierarchical steps to be followed. He also stated that he had vast experience in the Discipline Policy, which sets out the Discipline Process. The Discipline Process was noted by the AAT as consisting of ongoing informal feedback, Formal Counselling and Warning Counselling, and/or a Disciplinary Inquiry.
The employee's manager also gave evidence. She explained that the letter informing the employee of the Warning Counselling interview was prepared in accordance with accepted practice, and that the four days' notice given to the employee was not unusual.
The AAT found that the Warning Counselling interview was conducted as part of the disciplinary process, and was 'disciplinary action' within the meaning of section 4 of the SRC Act. The AAT also accepted the evidence of the Manager of Corporate Human Resources, who it found was a 'senior and experienced' manager. His evidence stated that the Warning Counselling was appropriate due to the seriousness of the concerns regarding lost revenue, and that informal discussions had already occurred. Interestingly, the AAT held that whether the counselling should have been Formal Counselling instead of Warning Counselling was a matter for Australia Post.
Points for employers
The cases illustrate the following matters for claims that involve exclusions to the definition of 'injury' based on 'reasonable administrative action' and 'reasonable disciplinary action':
- Evidence from experienced managers and human resource staff involved in the relevant events will be critical. The evidence of the Manager of Corporate Human Resources in Re Bui, who was described as 'senior and experienced', was accepted. The managers in Re Steuregger were able to give separate and corroborative evidence of the action taken, and the reasonableness of that action. That evidence was accepted, particularly in light of the employee's identified memory problems and tendency to misconstrue information.
- Contemporaneous written records of counselling sessions will also be relevant to the AAT's consideration of the events in question. Such evidence may assist in rebutting documentation prepared by employees some time after the alleged events took place. In Re Steuregger the AAT was not convinced of the employee's statement written well after the incidents in question, and which diverged significantly from information in the initial claim form. In Re Bui the AAT regarded it as significant that the employee was unable to produce documentation supporting her version of events.
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