Amanda Kosteski and Comcare

Case [2014] AATA 217

[2014] AATA 217

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/2551

Re

Amanda Kosteski

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President RP Handley
Date 14 April 2014  
Place Sydney

The Tribunal:

(1) Sets aside the decision under review and substitutes a decision that Ms Kosteski suffered an injury as defined in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) and that the Respondent is liable to the Applicant under s 14 of the SRC Act.

(2) Orders that the Respondent pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.

...........................[sgd].............................................

Deputy President RP Handley

Catchwords

COMPENSATION – definition of injury – excludes diseases or injuries resulting from reasonable administrative action taken in a reasonable manner – injury resulted from being told to return to a workplace where she perceived she had been bullied and harassed – employer on notice of perception – should have been clear to employer that insistence on a return to that workplace would likely result in an injury – not reasonable – decision set aside and substituted

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 4(1), 14(1)

Cases

Drenth v Comcare [2012] FCAFC 86
Dunstan and Comcare [2012] AATA 567

REASONS FOR DECISION

Deputy President RP Handley

  1. Ms Kosteski has applied to the Tribunal for the review of a decision made by Comcare to refuse her claim for compensation on the ground that it was a result of reasonable administrative action carried out in a reasonable manner.

    BACKGROUND

  2. Ms Kosteski was born in 1973. She is married with three children, aged 12, 10 and 5. She has worked for the Department of Social Services (the Department) since 1995, and began working in Centrelink’s Business Integrity unit in Hurstville in December 2006.

  3. Ms Kosteski took leave in 2008 for the birth of her youngest child. During her time off in 2008 her father passed away. She was also affected by the deaths and illness of others to whom she was close. Ms Kosteski returned to work in her position at APS4 level at the Hurstville office in mid-2010. On returning to work, Ms Kosteski experienced difficulties with her new managers. On 1 June 2010, she reported to her General Practitioner (GP), Dr Notte, that she was experiencing stress as a result of changes in the management of the Hurstville Business Integrity unit. Ms Kosteski reported that her manager was ‘on her back’, altering her work environment and reducing her hours.

  4. In February 2011, Ms Kosteski transferred on a temporary basis to the Emergency Processing Team at the Centrelink Rockdale office. This was to assist in the processing of emergency payments following the 2011 Queensland and Victorian floods. During this time, she complained to staff at the Rockdale office of difficulties with her managers at the Business Integrity unit at Hurstville, and asked her manager at Rockdale if she could relocate to the Rockdale office on a permanent…

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Details
AGLC
Amanda Kosteski and Comcare [2014] AATA 217
Case
[2014] AATA 217
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal is an application for review of a decision by Comcare to refuse a claim for compensation by Ms Amanda Kosteski. Ms Kosteski sought compensation for a psychiatric injury she claimed was caused by reasonable administrative action carried out in a reasonable manner by her employer, the Department of Social Services (Centrelink). Ms Kosteski alleged that she was bullied and harassed by her managers, leading to a psychiatric injury that resulted in incapacity for work.

The central legal issues for the Tribunal to determine were whether Ms Kosteski suffered from a disease under section 5B of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and if this disease resulted from reasonable administrative action taken by Centrelink. Additionally, the Tribunal had to assess whether the injury resulted in incapacity for work or impairment, thereby making Comcare liable for compensation under section 14 of the SRC Act.

The Tribunal found that Ms Kosteski had indeed suffered a psychiatric injury that met the criteria of a disease under section 5B of the SRC Act. The Tribunal accepted her evidence of sustained bullying and harassment by her managers, Christina Hartup and Chris Westbury, which led to her psychiatric condition. The Tribunal also determined that this injury was not a result of reasonable administrative action by Centrelink. Further, the expert medical evidence established that Ms Kosteski was incapacitated for work due to her injury as of 15 November 2012. Therefore, the Tribunal concluded that Comcare was liable for compensation under section 14 of the SRC Act.

The Tribunal set aside the original decision by Comcare and substituted its own decision that Ms Kosteski suffered an injury as defined in section 5A of the SRC Act. It ordered that Comcare was liable to Ms Kosteski under section 14 of the SRC Act. Additionally, the Tribunal ordered Comcare to pay the costs of these proceedings incurred by Ms Kosteski.

Orders

Orders of the court

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Background

Background to the litigation

Ms Kosteski has applied to the Tribunal for the review of a decision made by Comcare to refuse her claim for compensation on the ground that it was a result of reasonable administrative action carried out in a reasonable manner.BACKGROUND Ms Kosteski was born in 1973. She is married with three children, aged 12, 10 and 5. She has worked for the Department of Social Services (the Department) since 1995, and began working in Centrelink’s Business Integrity unit in Hurstville in December 2006. Ms Kosteski took leave in 2008 for the birth of her youngest child. During her time off in 2008 her father passed away. She was also affected by the deaths and illness of others to whom she was close. Ms Kosteski returned to work in her position at APS4 level at the Hurstville office in mid-2010. On returning to work, Ms Kosteski experienced difficulties with her new managers. On 1 June 2010, she reported to her General Practitioner (GP), Dr Notte, that she was experiencing stress as a result of changes in the management of the Hurstville Business Integrity unit. Ms Kosteski reported that her manager was ‘on her back’, altering her work environment and reducing her hours. In February 2011, Ms Kosteski transferred on a temporary basis to the Emergency Processing Team at the Centrelink Rockdale office. This was to assist in the processing of emergency payments following the 2011 Queensland and Victorian floods. During this time, she complained to staff at the Rockdale office of difficulties with her managers at the Business Integrity unit at Hurstville, and asked her manager at Rockdale if she could relocate to the Rockdale office on a permanent basis. However, after only two weeks working at the Rockdale office, Ms Kosteski was told by her manager at the Business Integrity unit, Christina Hartup, to return to the unit. Ms Kosteski claims that on her return, and until September 2011, she was the victim of sustained bullying and harassment by Ms Hartup and her Director, Chris Westbury. On 19 September 2011, Ms Kosteski commenced work in a temporary, higher duties (APS5) position as a Community Engagement Officer with Centrelink. She was based in a different building in Hurstville. Her Team Leader was Denis Williams whose office was in Darlinghurst. At the commencement of her new position, Ms Kosteski was made aware that the role would be temporary and short term, initially for three months. As it turned out, the position was extended and Ms Kosteski was employed in that role until 26 November 2012. On 26 October 2012, Ms Kosteski was informed by Mr Williams and his Director, Vicki Bishop, that the funding for the position was to end. She was advised that, as a result, she would have to return to her previous position in the Business Integrity unit at Hurstville. This caused Ms Kosteski considerable anxiety. She told Mr Williams and Ms Bishop that she could not return to the Hurstville unit because of her treatment by Ms Hartup and Mr Westbury and that the prospect of doing so caused her significant stress. She said she would work anywhere else if she could.

Evidence

Evidence Before The Court

Finally, if the Tribunal is satisfied that Ms Kosteski suffered from a disease under s 5B, and not as a result of reasonable administrative action taken by Centrelink, it must decide whether the injury resulted in incapacity for work or impairment. Section 14(1) of the SRC Act provides:(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.MS KOSTESKI’S EVIDENCE Ms Kosteski provided statements dated 23 August 2013 and 23 March 2014 and gave evidence at the hearing. Ms Kosteski said that she commenced work at the Centrelink Business Integrity unit at Hurstville in December 2006. She claims that she was bullied and harassed by Christina Hartup and Chris Westbury between approximately October 2010 and September 2011. She gives as examples being subjected to Ms Hartup “standing over me whist sitting at my desk”, being belittled and humiliated in team meetings, being interrogated about her personal life every six weeks when her part-time hours were reviewed, the reasons recorded for her personal leave not reflecting what was stated on the medical certificates, being subjected to persistent follow up calls when she was not at work seeking the reasons for her being on leave, and witnessing her Director use his hands in pretending to shoot a staff member who had asked a question at a meeting. Ms Kosteski also said that when she was acting in a leadership position, she witnessed Ms Hartup and Mr Westbury suggest that if staff did not do as asked, they would be shown “the door”, and making it clear that certain staff were to be targeted and then demonstrating this in meetings. Ms Kosteski stated that she raised her concerns about Mr Westbury and Ms Hartup with their national manager Scott Brittan, reported bullying and harassment incidents to the Harassment Contact Officer for the Hurstville unit, spoke about the situation to her Team Leader, Peter Graham, and contacted Human Resources after the results of a staff poll and asked what was going to be done about it. Ms Kosteski said she tried to find an alternative position elsewhere in Centrelink because of her experience in the Business Integrity unit. It was Mr Westbury who, at her request, agreed to her transfer to Rockdale on a temporary basis in February 2011 to work in the Emergency Processing Team. She said the friendly email she sent to Mr Westbury on 10 February 2011, after he had given his approval to the transfer, was because she was afraid he might put a stop to her transfer - she was scared of him. Ms Kosteski said she was unaware of any problem with the transfer until Ms Hartup informed her a few weeks later. Ms Kosteski said at the meeting with Ms Hartup in Rockdale (on 25 February 2011), Ms Hartup put her in a room and interrogated her, and by the end of two hours she was almost hysterical. She hugged Ms Hartup at the end of their meeting because she was prepared to do whatever was necessary to get away. Ms Kosteski said, after the meeting with Ms Hartup, she consulted the Union as to her rights and thereafter insisted on a third party being present in all meetings with Ms Hartup. She also contacted Julie Devlin, her manager during her temporary transfer to the Rockdale office, to ask who had instigated the investigation into her working at Rockdale. She said Ms Devlin’s account of what happened is very different to that of Ms Hartup.

Decision

Reasons for decision

The remaining question is whether, pursuant to s 14, the injury resulted in incapacity for work or impairment. The expert medical evidence of Dr Smith and Dr Way is clear that Ms Kosteski was incapacitated for work as a result of the injury on 15 November 2012. Thus, I am satisfied that the Respondent is liable under s 14 of the SRC Act for the injury caused to Ms Kosteski. DECISION The Tribunal:(a)Sets aside the decision under review and substitutes a decision that Ms Kosteski suffered an injury as defined in s 5A of the SRC Act and that the Respondent is liable to the Applicant under s 14 of the SRC Act.(b)Orders that the Respondent pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.

Ratio Decidendi

Legal Principle Established

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