Quality proficiency assessment was reasonable administrative action

Date: May 10, 2023

 

Tierney and Comcare (Compensation) [2023] AATA 674

Key Points

• The Tribunal was asked to decide whether the applicant’s psychological condition was suffered as a result of reasonable administrative action, taken in a reasonable manner, in respect of his employment.
• The Tribunal found in favour of Comcare.

Background

On 9 October 1996, the applicant commenced employment for the Department of Human Services (now Services Australia) (the Agency). He retired in February 2022.

On 3 September 2020, the applicant submitted a claim for workers’ compensation in respect of a psychological injury claimed to have been sustained as a result of “QOL Tool is unduly harsh and unreasonable and does not take into account possible psychological consequences” on 2 July 2020.

The Quality On Line (QOL) proficiency assessment process involved having claims checked over a set period and if an error was detected, it would be returned to the employee for fixing.

On 13 November 2020, Comcare denied liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on the basis that the applicant’s psychological condition arose as a result of reasonable administrative action, taken in a reasonable manner, in respect of his employment. The applicant sought reconsideration of the determination and by reviewable decision dated 22 December 2020, Allianz, on behalf of Comcare, affirmed the determination. The applicant sought further review at the Administrative Appeals Tribunal.

The Law

Section 5A(1) of the SRC Act provides as follows:

“injury” means:

• a disease suffered by an employee; or
• 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; or
• an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that 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.

Section 5A(2) provides a non-exhaustive list of actions that are considered to be reasonable administrative actions.

The authority of Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 provides that in order for an action to be considered administrative, it must:

1. be taken in respect of the employee’s employment;
2. be directed specifically at the employee and not taken in respect of a class of employees; and
3. not merely affect an ordinary feature of the employee’s work, workplace or environment.

Comcare v Martin (2016) 258 CLR 67 provides that the administrative action must be an event without which the applicant’s condition would not have been a disease.

Conclusion

Counsel for the applicant contended that the QOL proficiency assessment that the applicant underwent from 14 May 2020 was not administrative action in respect of his employment. Counsel contended that the QOL proficiency assessment was an additional requirement imposed on him as a result of an upskilling decision and was not a performance assessment and therefore, not an administrative action. Counsel submitted that if the Tribunal determined the QOL proficiency assessment was administrative action taken in respect of the applicant’s employment, then it was not reasonable administrative action because it was a form of micromanagement and required a level of proficiency/accuracy (95%) that was not reasonable to require in circumstances where human errors were inevitable. Counsel also submitted that if the Tribunal found that the QOL proficiency assessment itself was not unreasonable, then it was not taken in a reasonable manner.

Comcare accepted that the applicant suffered “major depressive disorder with anxious distress” which was significantly contributed to by his employment with the Agency. However, Comcare contended that liability for the applicant’s claimed psychological condition was excluded on the basis that it arose as a result of reasonable administrative action undertaken in a reasonable manner. Comcare accepted that the QOL process was allocated generally to all staff at APS4 level and that this could result in it being categorised as “operational” rather than administrative action pursuant to Reeve. However, Counsel contended that from 14 May 2020, when the applicant ’s QOL proficiency assessment commenced and he did not meet the requisite high standard, it was no longer operational and became specific to the applicant’s employment.

The Tribunal accepted the medical evidence of Dr Kausar Abbas (GP) and Associate Professor Abdul Khalid (Psychiatrist) and found that it was probable that, but for the requirement to undertake the QOL proficiency assessment, the applicant’s “major depressive disorder with anxious distress” would not have arisen. Accordingly, the Tribunal was satisfied that the applicant’s condition met the test in Martin and was significantly contributed to by his employment. Further, the Tribunal accepted Comcare’s submissions and found that the QOL proficiency assessment was reasonable administrative action, as it was a reasonable appraisal of the applicant’s performance, and that while the background to the change did not seem ideal, the action was undertaken in a reasonable manner.

Accordingly, the reviewable decision was affirmed.

Lessons Learnt

The Tribunal’s decision confirms that an operational action may become an administrative action in circumstances where it imposes specific duties on one employee only.

 

Contact:

Lauren Bishop, Solicitor, HBA Legal | lauren.bishop@hbacrawford.com.au

Claire Tota, Partner, HBA Legal | claire.tota@hbacrawford.com.au

 

Visit www.hbalegal.com for more case articles and industry news.

Disclaimer: This article is intended for informational purposes only and should not be construed as legal advice. For any legal advice please contact us.

« Back to Insights