Tribunal takes strict interpretation of reasonable administrative action
Date: June 27, 2019
Terbizan and Comcare  AATA 3862.
- Mr Terbizan claimed to have sustained a psychological condition, as a result of the decision to cease his temporary role as a fire alarm administrator.
- As the role was always temporary, and this was communicated to Mr Terbizan as soon as possible, his claim was denied.
Mr Terbizan was employed as an aviation firefighter with Airservices Australia from 1982 until 2013. He was approached by his Manager in 2013 to see if he would be interested in the temporary position of fire alarm administrator for a short period. There was some discussion that funding for a permanent position in this role might occur in the long term
Mr Terbizan submitted an application for the role, stating that he was “willing to agree to a 3-month secondment period to trial this process”. In October 2013, Mr Terbizan transitioned into the fire alarm administrator role. There was some communication as to whether the role would become permanent. However, over time, Mr Terbizan became frustrated by the uncertainty over his position.
After an investigation, a letter was sent to Mr Terbizan on 24 November 2014, advising that the fire alarm monitoring tasks Mr Terbizan was undertaking would be phased out over the following six months. Mr Terbizan submitted a workers’ compensation claim pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of “adjustment disorder with depressed and anxious mood” sustained as a result of receiving the letter of 24 November 2014. Liability to pay compensation was denied on the basis that the condition arose due to events that fall within the reasonable administrative action defence.
Section 5A(1) of the SRC Act provides that liability for an injury will be excluded where the injury is sustained as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
The High Court authority of Comcare v Martin  provides that administrative action must be a cause in fact of the condition suffered, though it need not be the sole cause: ‘What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment. ‘:
Mr Terbizan relied on the authority in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 which provides that matters of general administration, management and the implementation of policy are excluded from the definition of administrative action, even if they affect the employment of employees. Mr Terbizan contended that the decision not to continue his role was an operational decision, rather than specific administrative action directed towards his employment. Further, he contended that the action was unreasonable as the decision was not discussed with him and Airservices was aware that Mr Terbizan was frustrated by a lack of certainty about his role.
The Tribunal considered whether the giving of the letter was reasonable administrative action taken in a reasonable manner in relation to Mr Terbizan’s employment. Because it concerned Mr Terbizan’s employment, namely his role as fire alarm administrator, the Tribunal found that the giving of the letter was administrative action. As Mr Terbizan was always told the role was temporary, the Tribunal found that the decision to end Mr Terbizan’s employment was reasonable.
The Tribunal then considered whether the reasonable administrative action was undertaken in a reasonable manner. The Tribunal found the delay in making a decision regarding Mr Terbizan’s role resulted from a longer than anticipated investigation of the fire alarm monitoring. Further, it accepted that Airservices did not mislead Mr Terbizan about the temporary nature of the role. The Tribunal accepted that this was a legitimate human resource management action which was undertaken in a reasonable manner and, therefore, the exclusionary provisions in s 5A of the Act were satisfied and Comcare was not liable to pay compensation for the psychological condition.
This case highlights the importance that employers maintain clarity and transparency around the making of, and delivery of decisions relating to an employee’s role in the organisation.
Rebecca Tloczek Brett Ablong
Direct: +61 (0) 8 9265 6020 Direct: +61 (0) 8 9265 6001
Download PDF here: Terbizan v Comcare