Amanda Hay and Comcare

[2014] AATA 325

[2014] AATA 325

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2186
Re	Amanda Hay
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	27 May 2014
Place	Brisbane

The decision under review is set aside. The Tribunal decides in substitution that Comcare is liable for the applicant’s claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

..........................Sgd..........................................

Senior Member Bernard J McCabe

CATCHWORDS

COMPENSATION – Applicant diagnosed as suffering adjustment disorder with symptoms of anxiety – Date of onset agreed between parties – Respondent argues the condition does not meet legislative definition of ‘injury’ – Distinction between matters connected to employment and matters of an operational nature – Tribunal not satisfied that meeting concerned matters connected to applicant’s employment – Legislative exemption does not apply – Reviewable decision set aside – Decided in substitution that respondent is liable for the applicant’s claim.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1); 5A(2); 14

CASES

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463

REASONS FOR DECISION

Senior Member Bernard J McCabe

27 May 2014

1. This case is about reasonable administrative action within the meaning of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).

2. Ms Amanda Hay suffers from psychiatric symptoms that she claims arose out of the circumstances of her workplace.  Comcare, the respondent, agrees:

   ·Ms Hay has been properly diagnosed as suffering from adjustment disorder with symptoms of anxiety;

   ·the date of onset was 6 September 2010, while she worked for the Child Support Agency; and

   ·the applicant’s employment at the Child Support Agency made a significant contribution to the condition.

3. Notwithstanding these concessions, Comcare says it is not liable for Ms Hay’s condition because it does not meet the definition of injury in s 5A. While a psychiatric condition would ordinarily qualify as an injury, Comcare relies on the exemption that applies to conditions that are “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment”: s 5A(1). Comcare says the exclusion clause is applicable here because the event which set off Ms Hay’s condition was an interaction with a manager. On Comcare’s case, the manager was speaking to Ms Hay about aspects of her performance.

4. The applicant denies the interaction with the manager amounted to administrative action. She says the discussion related to operational matters: it was not “action…in respect of the employee’s employment”. She goes on to argue that even if the interaction did amount to administrative action, it was not “taken in a reasonable manner” because the manager handled the situation in an unnecessarily confrontational manner.

5. I am satisfied the applicant’s claim should succeed. I explain my reasons below.

   THE APPLICANT’S WORK HISTORY

6. Ms Hay is an experienced public servant who has worked in a variety of roles in a number of public sector organisations. She has also spent time working in the private sector. She commenced employment with…