The “reasonable administrative action” defence can encompass a broad range of actions of the employer

Date: December 10, 2024

Moradi v Comcare [2024] FCA 812

Key Points:

• The applicant claimed compensation for psychological injury as a result of her deployment being terminated early. Her claim was declined for reason of reasonable administrative action and this decision was affirmed by the Tribunal. The applicant appealed to the Federal Court.
• The Federal Court was tasked to determine whether the employer’s action in terminating the applicant’s deployment early was an administrative action, and whether it was reasonable.
• The Federal Court rejected the applicant’s argument that the action was an “operational action”, and held that a change in an employee’s role due to change of operational demand was still an “administrative action”, and upheld the decision of the Tribunal.

Background:

The applicant is an interpreter employed by the Department of Home Affairs (the Department) and was deployed to Nauru in 2017. The applicant was later informed that her deployment would be terminated early due to “a requirement to reduce interpreters based on operational needs”. The applicant made two claims for compensation for psychological injuries arising out of the deployment, both of which were declined on the basis that those injuries were suffered as a result of early termination of deployment which was found to be reasonable administrative action (RAA).

The Tribunal affirmed the reviewable decisions, and the applicant appealed to the Federal Court which is the subject of this case.

The grounds of appeal were confined to the statutory test of “administrative action (AA)” and whether the early termination of the deployment constituted an AA. The first ground of appeal was that the early termination of deployment was operational rather than an AA. The second ground of appeal was that the deployment was not a “benefit in connection with” employment as in section 5A(2)(f) of the SRC Act.

Justice McEvoy indicated in his judgment that, the applicant could have disputed the fact that the Tribunal did not deal with the psychological conditions arising from other circumstances during the deployment, and the way in which the Tribunal applied the “reasonable” and “undertaken in a reasonable manner” limbs as in section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

The Law:

Section 5A(2) of the Safety, Rehabilitation & Compensation Act 1988 (Cth) (SRC Act) provides:

(2)  For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

1. a reasonable appraisal of the employee’s performance;
2. a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
3. a reasonable suspension action in respect of the employee’s employment;
4. a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
5. anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
6. 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.

Conclusion:

Regarding the first ground of appeal  

The Federal Court rejected this argument and held that an AA includes action taken with respect to the employment of a particular employee, and an “operational action” is an “action that relates to the activities or business of the institution”, such as an instruction to perform particular duties at a particular location, or to drive on a particular route.

McEvoy J noted the decision to terminate the deployment early was two-folded. The first element was an “operational” element which was the policy to reduce the overall number of interpreters. The second element was an “administrative” element which was the selection of the applicant (and other four interpreters) to have their deployments terminated prematurely. In this sense, the Tribunal had properly found that the second element was the relevant AA

Regarding the second ground of appeal

McEvoy J found the finding of AA itself was sufficient for the purpose of section 5A(1), and the Tribunal’s “supplementary finding” about section 5A(2)(f) was not integral nor necessary to the reasoning. Nevertheless, McEvoy J did not consider this supplementary finding of the Tribunal was erroneous. Overall, McEvoy J found no error in the Tribunal’s decision and dismissed the appeal with costs.

Lessons Learnt:

The “reasonable administrative action” defence can encompass a broad range of actions of the employer, including a change of the role of an employee due to change of operational demand.

Contact:

Download PDF here:  Moradi v Comcare 

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