Australia: Tell them who is boss (but do it the right way): Tribunal finds Administrative Actions not reasonable

O'Connell and Comcare [2017] AATA 178

Key Points

  • The Administrative Appeals Tribunal was asked to consider whether an informal meeting with an employee, and a Notice to that employee that she had been referred for a Fitness for Duty assessment, constituted reasonable administrative actions undertaken in a reasonable manner for the purpose of section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
  • The Tribunal found that the reasonableness of the administrative actions, and the way they were carried out, were to be considered irrespective of the conduct of the worker.


Ms O'Connell was a Customer Service Officer working at Centrelink. Prior to 2013, she experienced a number of personal and health events giving rise to her taking unplanned leave. In February 2013, complaints were raised with Ms O'Connell's manager by her colleagues. The complaints related to her manner in dealing with customers on the telephone. The complaints led to a meeting being called between Ms O'Connell and her team leader, Mr Rugari, on 7 February 2013. The meeting caused Ms O'Connell significant distress and resulted in her being absent from work.

Ms O'Connell absences from work, in addition to a number of assessments and decisions made by Comcare, led to her being issued with a notice that a Fitness for Duty Assessment had been arranged for her in January 2014. The referral, and the circumstances surrounding it, also caused Ms O'Connell significant distress.

On 8 July 2014, Ms O'Connell lodged a claim for compensation for severe anxiety and stress. In her claim, she attributed her condition to the meeting which occurred on 7 February 2013. She described the cause of her condition as the "allegations of complaints" from her team members regarding her "work performance", as well as "Harassment & Bullying tactics from management".

Comcare issued two separate determinations. The first denied liability to pay compensation for "adjustment disorder" sustained on 7 February 2013, the date of the meeting. The second denied liability for "anxiety state" sustained on 22 January 2014, being an aggravation of the adjustment disorder sustained on 7 February 2013. The determinations were each affirmed by reviewable decisions, and Ms O'Connell applied to the Tribunal for review of both decisions.


Comcare conceded that Ms O'Connell had suffered a disease, being an adjustment disorder pursuant to section 5B of the SRC Act, that was significantly contributed to by her employment, specifically the meeting. Comcare also conceded in respect of the aggravation sustained after being notified of her FFD assessment in January 2014.

The issue for the Tribunal to decide was whether the meeting and the notice amounted to reasonable administrative action taken in a reasonable manner, so as to exclude compensation liability pursuant to section 5A(1) of the SRC Act.

The meeting

The Tribunal concluded that the meeting, which was informal, did not constitute a reasonable administrative action, nor was it carried out in a reasonable manner. Its reasons were as follows:

  1. Passing on negative feedback to Ms O'Connell without detail or context rendered the action unfair;
  2. The call that Mr Rugari listened to in preparation for the meeting was found to have been dealt with in a satisfactory manner;
  3. Ms O'Connell had worked as a team member supervised by Mr Rugari since March 2011 (albeit with periods acting in a higher position elsewhere); and
  4. Mr Rugari had several better options available to him to deal with the complaints of Ms O'Connell's behaviour reasonably.

The Tribunal found that Ms O'Connell's 'rude' conduct in taking telephone calls with customers was irrelevant. The meeting, it was held, was not malicious, aggressive or inappropriate, however Mr Rugari was not in an informed position to have put the feedback to Ms O'Connell without context, and the meeting should not have been held.

The notice

It was held that, on the evidence before the Tribunal, typical practice was to secure a medical appointment for an FFD assessment well in advance of any conversation with the employee about the assessment. The Tribunal was not satisfied that the specific issue of Ms O'Connell's FFD had been discussed with her before she received the notice on 13 January 2014, at a time when the decision had already been taken. It concluded that (at [79]):

"Whilst slavish adherence to policies may sometimes produce absurd or unintended consequences, in our view, it was appropriate that they be followed in this case. In our view, the fact that the issue of fitness for duty was not discussed with Ms O'Connell in the particular circumstances of this case has the result that the action of referral at that time was not reasonable, or undertaken in a reasonable manner."

It is important to note that the Tribunal acknowledged Ms O'Connell had taken periods of employment which "warranted investigation" from her employer, and that she did not fully appreciate this. However, as with the meeting in February 2013, Ms O'Connell's conduct ultimately had no bearing on the Tribunal's assessment of the reasonableness of her employer's actions.

The Tribunal held that neither the meeting nor the notice, while both administrative actions, constituted reasonable administrative actions undertaken in a reasonable manner, and that her ailments were not excluded from the definition of "injury" in section 5A(1). Comcare was found to be liable to pay compensation to Ms O'Connell with respect to her injuries arising from both events.

Lessons Learnt

This matter serves as an important reminder that the conduct of an employee does not alleviate the requirement for all administrative actions to be carried out reasonably by an employer.

In this case, the employee was apparently blindsided with a surprise meeting and a notice of a medical assessment without context or reason. Employers must maintain transparency with workers to help avoid situations such as this.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.