Adams and Comcare (Compensation) - [2016] AATA 275

Adams and Comcare (Compensation) [2016] AATA 275 (29 April 2016)

Division

GENERAL DIVISION

File Number

2013/3724

Re

Jenny Adams

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 29 April 2016

Place Sydney
The Tribunal affirms the decision under review.

..........................[sgd]..............................................
Senior Member J F Toohey
COMPENSATION
COMPENSATION – adjustment disorder – no dispute that employment contributed to a significant degree – whether compensation excluded because condition was a result of reasonable administrative action in respect of employment – whether taken in a reasonable manner – operative cause – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988

CASES
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16

Comcare v Martinez (No. 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21Drenth v Comcare (2012) 128 ALD 1
Hart v Comcare [2005] FCAFC 16
Keen v Workers Rehabilitation and Compensation Commission (1998) 71 SASR 42
Martin v Comcare [2015] FCAFC 169
Pettiford and Comcare [2014] AATA 95

Wiegand v Comcare (No 2) [2007] FCA 237
REASONS FOR DECISION
Senior Member J F Toohey
29 April 2016
BACKGROUND

This matter concerns an application by Jenny Adams, a former employee of the Australian Taxation Office (ATO), for compensation for an adjustment reaction with mixed emotional features suffered as a result of events that occurred at work on 25 August 2011.
By s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act), Comcare is liable to compensate an employee for an injury that results in incapacity, impairment or death. Comcare accepts that Ms Adams suffers from an adjustment reaction with mixed emotional features and that her condition is an ailment within the meaning of the SRC Act. Comcare accepts that her employment contributed, to a significant degree, to her condition.
It is common ground that, if that were the end of the matter, Ms Adams would have a compensable injury within the meaning of s 5B of the SRC Act. Comcare maintains, however, that Ms Adams’ ailment is the result of reasonable administrative action taken in a reasonable manner in respect of her employment and is therefore not a compensable injury within the meaning of the SRC Act.
Section 5A of the SRC Act provides that injury for the purpose of the SRC Act means:
(1) (a) a disease suffered by an employee; or
(b) 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
(c) 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams and Comcare (Compensation)

Details

AGLC: Adams and Comcare (Compensation) [2016] AATA 275
Case: [2016] AATA 275
Decision Date: 29 April 2016

CaseChat Overview and Summary

This matter concerned an appeal by Ms Adams against a decision by Comcare to deny her claim for compensation for an adjustment disorder. The central dispute revolved around whether Ms Adams' condition was a result of reasonable administrative action taken in respect of her employment, which would exclude it from compensation under the relevant legislation. The decision was heard by J F Toohey SM.

The court was required to determine two primary legal issues. Firstly, whether the administrative actions taken in respect of Ms Adams' employment, specifically those occurring on 25 August 2011, constituted reasonable administrative action taken in a reasonable manner. Secondly, if these actions were found to be reasonable, whether Ms Adams' adjustment disorder was a result of such actions, thereby excluding her claim for compensation. The court also considered, in the alternative, whether preceding events from March to May 2011, which involved performance management, also fell within the exclusionary provisions.

The court found that the administrative actions taken on 25 August 2011, including the refusal of sick leave and a formal direction to leave the premises, were reasonable and taken in a reasonable manner. This conclusion was based on evidence that Ms Adams had been remaining on the premises without apparent reason and had previously triggered a fire alarm by attempting to leave via fire stairs. The court accepted that these actions were taken in response to security concerns and prior warnings. Consequently, the court held that Ms Adams' adjustment disorder was not an injury within the meaning of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) due to the exclusionary provision concerning reasonable administrative action.

The Tribunal affirmed the decision under review, meaning Ms Adams' claim for compensation was dismissed.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Dr Michael Hong, a consultant psychiatrist who assessed Ms Adams for the purposes of these proceedings and prepared a written report, gave oral evidence by telephone.SUMMARY OF DECISION For the reasons that follow, I am satisfied that the administrative action taken by Ms Michel on 25 August 2011 in refusing Ms Adams’ claim for sick leave, and in giving her a formal direction, was reasonable administrative action taken in a reasonable manner in respect of her employment. Whether considered as comprising a single administrative action or two separate actions, they were reasonable administrative action taken in a reasonable manner in respect of her employment. It follows that Ms Adams’ adjustment disorder is not an injury within the meaning of the SRC Act and her claim must fail. There was argument as to: whether all or any of the events in the months leading up to 25 August 2011 contributed to Ms Adam’s adjustment disorder; whether an “operative cause” is sufficient or a “significant contribution” is necessary for the purposes of the exclusion; and whether those actions met the exclusionary provision. Given my conclusion that what occurred on 25 August 2011 comes within the exclusion, it is not strictly necessary to determine those questions in relation to the preceding events. However, they are relevant insofar as they form the background and context in which the administrative action on that date was taken, and so I have considered those matters as well.Ms Adams’ employment with the ATO Ms Adams commenced employment as a full-time APS Level 4 Compliance Officer with the ATO in February 2008, in a team known at the time as Active Compliance, Micro Enterprises and Individuals Rental Team. She completed her probation period in about May 2008. Sometime in 2010 she moved to the High Income Individuals Team which conducts audits of individuals whose remuneration exceeds $500,000 per annum. The following paragraphs detail the evidence concerning events leading up to and on, 25 August 2011. For the most part, there is no dispute about the facts.February 2008 to July 2010 From February 2008 to June 2010, Ms Halliwell was the Team Leader and Ms Adams’ supervisor. According to Ms Halliwell’s statement, the team’s work changes according to ATO priorities but is broadly described as “compliance auditing with a component of education and other audit-related work”. According to Ms Halliwell’s statement, each team has a Team Technical Adviser (TTA) responsible for technical leadership and advice to team members on matters such as completing case work, ensuring decisions comply with tax law and ATO policy, and providing “technical skilling”. Team members are not bound to follow the advice of the TTA but their expertise means their views carry “a lot of weight”. Ms Halliwell states that she became “troubled” by Ms Adams’ performance shortly after the end of her probation period. In particular, Ms Adams “received direction poorly” and her “most likely” response to guidance or instruction was to challenge the advice or find reason it should not be followed; she “shopped around” for advice rather than engage in discussion, resulting in unacceptable delays in her audits; and there were complaints about the manner in which she dealt with a tax agent and a tax payer.

Ratio Decidendi

Legal Principle Established

Ms Michel gave evidence that concerns had been raised about Ms Adams remaining on the premises without apparent reason and she was concerned that Ms Adams was trying to complete work or, possibly, had attended the office for some unauthorised purpose. She said the 7pm direction was because security officers had reported “numerous times” that Ms Adams had remained after that time and, for unknown reasons, on one occasion, attempted to leave by the fire stairs, setting off the fire alarm. I accept her evidence. Consideration Even if the withdrawal of flextime was outside the terms of the Agency Agreement (which I do not accept), that does not undermine the reasonableness of what occurred on 25 August 2011. Regardless of the Direction issued on 7 July 2011, Ms Adams was warned several times leading to that date what would happen if she did not attend work. I do not accept that the direction about leaving the building was unreasonable or unlawful but, in any event, it had no bearing on what occurred on 25 August 2011.THE EVENTS LEADING UP TO 25 AUGUST 2011 Because, for the reasons above, Ms Adams’ claim must fail, it is not necessary to determine whether compensation would also be excluded on the basis of administrative action from around March 2011 to May 2011. However, I will deal briefly with those events. Comcare contends that the attempts by Ms Michel and then Mr Mellifont to implement an informal performance management process from around March to May 2011 should be regarded as together forming one reasonable administrative action. I accept they should be regarded in that way. I find they come within subsection 5A(2)(b) (a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment). I find they come within subsection 5(2)(e) (anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d)). They may also come within sub-section 5(2)(a) (a reasonable appraisal of the employee's performance) although a more formal appraisal may be required to come within this provision For Ms Adams it is submitted that the evidence does not support the conclusion that these events contributed to a significant degree to her adjustment reaction. Comcare contends that it is sufficient that they are an “operative cause” of her condition. Ms Adams gave oral evidence that the attempts by Ms Michel and Mr Mellifont to implement a performance improvement plan from around March 2011 had no effect on her and did not cause her anxiety or stress. Her general practitioners’ clinical notes show otherwise. Clinical notes for 11 March 2011 show “stressed at work ... given very difficult deadline by team leader … feels unreasonable request [sic] … also feels having leave not approved in unreasonable … feels that if work problems were solved then wouldn’t be stressed …”. The notes for 31 March 2011 show she was “constantly thinking of work problems” and feeling “very stressed” about her team leader’s demands. On 6 April 2011, her doctor recorded “still stressed, headache and nausea … anxiety symptoms … had case meeting at work yesterday … conflict with manager … still work related stress, no outside stressors.

Division	GENERAL DIVISION
File Number	2013/3724
Re	Jenny Adams
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	29 April 2016
Place	Sydney