ANNE DUFFY and COMCARE
[2009] AATA 252
•17 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 252
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1066
GENERAL ADMINISTRATIVE DIVISION ) Re ANNE DUFFY Applicant
And
COMCARE
Respondent
DECISION
Tribunal MS N BELL, Senior Member
DR M E C THORPE, MemberDate17 April 2009
Place Sydney
Decision The decision under review is varied as follows: Comcare has no liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of Ms Duffy’s depression from 13 January 2006, the date of the commencement of reasonable disciplinary action by the employer.
....................SGD..........................
Ms N Bell
Presiding Member
CATCHWORDS
Compensation – claim for compensation under section 4 and 14 of the SRC Act – definition of injury or disease – whether conduct of employer was ‘reasonable’ in terms of reasonable disciplinary – decision under review is varied.
Safety, Rehabilitation and Compensation Act 1988
Comcare v Eames [2008] FCA 422
Hart v Comcare [2005] FCAFC 16
Weigand v Comcare (2002) 72 ALD 795
REASONS FOR DECISION
17 April 2009 MS N BELL, Senior Member
DR M E C THORPE, Member1. Ms Anne Duffy commenced work with the Department of Defence in August 2004. She maintains she experienced difficulties with her superiors and, in July 2005, she attended her General Practitioner, Dr Moddel, who certified her as suffering from depression and unfit for work for one week.
2. Comcare now accepts liability for that period up until September 2005, on the basis that Ms Duffy perceived there were difficulties at work and this perception materially contributed to her depression. However, that is the extent of Comcare’s concession.
3. In September and October 2005, Ms Duffy made some unauthorised transactions on her Defence travel card and an investigation into an alleged breach of the code of conduct followed. In June 2006 Ms Duffy was found to have breached the code of conduct and was sanctioned with demotion and a reprimand.
4. In the meantime, Ms Duffy was certified unfit for work from 22 February to 3 March 2006 and on 6 March 2006 was seconded to the Public Service Commission until 30 June 2006. On 27 June 2006 she was again certified unfit for work and has not worked since that time.
5. Comcare maintains that Ms Duffy's condition improved following the period of July to September 2005 for which it now accepts liability; and that the next period of incapacity in February 2006 and any later period were the result of reasonable disciplinary action in response to her unauthorised use of her Defence travel card. Comcare maintains that this excludes Ms Duffy from the definition of “injury" by the operation of section 4 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
6. Ms Duffy maintains that the difficulties she experienced at work continued throughout her time there and continued to aggravate her depression. She also contends that it was those difficulties together with the way the disciplinary action was managed, rather than the fact of the disciplinary action itself, that aggravated her depression. She says that the disciplinary action, because of the way it was managed, was not reasonable.
7. The following issues arise:
(a)Was Ms Duffy's depression aggravated by her employment?
(b)Was any aggravation the result of reasonable disciplinary action?
8. Two questions arise in relation to the second issue: first, when the disciplinary action commenced and, second, whether it was reasonable.
9. If the answer to the second issue is yes, then the exclusionary provisions in section 4 of the SRC Act will apply and Ms Duffy will have no entitlement to compensation from the time the disciplinary action commenced. We are mindful of the judgment of the Federal Court in Hart v Comcare [2005] FCAFC 16 that, even if the reasonable disciplinary action is just one of a number of contributing causes of the condition or its aggravation, then the exclusion will apply, and Ms Duffy will have no “injury” and consequently no entitlement to compensation. For this reason, after considering the concession made by Comcare, we deal first with the issue of whether any aggravation of Ms Duffy's depression was the result of reasonable disciplinary action.
comcare’s concession
10. Comcare’s concession is that liability is accepted from 11 July 2005, when Ms Duffy saw, Dr Moddel, complaining of depression, and September 2005, when she was described by Dr Moddel in a letter to Dr Roberts, Psychiatrist, as having improved. At that time she was working and had ceased taking anti-depressant medication.
11. The basis on which Comcare accepts liability is that Ms Duffy had a perception that she was experiencing difficulty with her supervisors and while there is a factual contest as to what took place between Ms Duffy and her supervisors, Comcare accepts that she suffered as a result of her perceptions of what did take place. Comcare accepts that from 11 July 2005 to 3 September 2005 Ms Duffy had a condition that was outside the bounds of normal human functioning. In making this concession, Comcare also notes the corroborating statement of Ms Havnen, Ms Duffy’s superior, as to Ms Duffy’s distress during the period.
12. We are satisfied that the evidence referred to above and the judgment in Weigand v Comcare (2002) 72 ALD 795 supports Comcare’s concession and that the decision under review should be varied accordingly.
was any aggravation the result of reasonable disciplinary action?
13. We turn first to the question of when the disciplinary action commenced. There is no dispute that events took the following course:
·September/October 2005: four instances of misuse of Defence travel card; reporting of three instances by Ms Duffy;
·27 October 2005: reconciliation of transactions attempted by Ms Gill, Card Management System Supervisor, in consultation with Ms Duffy; 4th transaction identified by Ms Gill and not reported by Ms Duffy; referral to Colonel Petersen, who was at the time head of Support Branch within Headquarters Training Command – Army;
·28 October 2005: referral by Colonel Petersen to Ms Clifton, LHQ Finance Manager;
·31 October 2005: referral by Colonel Petersen to Mr Tony Riley, the Inspector General of Defence;
·1 December 2005: allocation of matter to Mr Steve Bowen Assistant Director, Investigations of Inspector General’s Group; Mr Bowen advises Colonel Petersen of intention to investigate;
·5 December 2005: Ms Duffy is interviewed by a selection panel for another Defence position;
·14 December 2005: Chairman of selection panel is advised by Inspector General Group that an investigation is on foot;
·21 December 2005: selection panel advises Ms Duffy of investigation;
·4 January 2006: Defence travel card taken from Ms Duffy;
·13 January 2006: Ms Duffy is given a letter from Colonel Petersen advising her that she is to be the subject of Code of Conduct proceedings;
·24 February 2006: investigation report issued by Inspector General Division of Defence and forwarded to a Defence APS Misconduct Delegate of the Secretary;
·21 April 2006: Defence APS Misconduct Delegate of the Secretary, Carol Billett, advises Ms Duffy she had breached the Code of Conduct and invites her to comment;
·June 2006: Ms Duffy found by Delegate of the Secretary to have breached the APS Code of Conduct; sanctions imposed.
14. The question that arises out of this chronology, is whether the disciplinary proceedings commenced on 13 January 2006 when Colonel Petersen wrote to Ms Duffy formally advising her of an investigation into an alleged breach of the Code of Conduct, or whether it commenced when the appointed Defence APS Misconduct Delegate of the Secretary wrote to Ms Duffy on 21 April 2006 advising her that she had formed the view there had been a breach of the Code of Conduct.
15. The decision of the Federal Court in Comcare v Eames [2008] FCA 422 makes it clear that “disciplinary action” is not restricted to the imposition of a sanction, but may include the process of determining whether there has been a breach of the relevant Code of Conduct including the investigation required to make that determination.
16. In Ms Duffy’s case, there are two points in time, each flagged by an event, that could be identified as the commencement of the disciplinary action. The first is the letter from Colonel Petersen to Ms Duffy, dated 13 January 2006, headed “Notification of Inquiry” and referring to the APS Code of Conduct, Chapter 10, Part 2 concerning “Breaches of the APS Code of Conduct”. The letter advises Ms Duffy that the matter is to be investigated by the Inspector General’s Group in Defence. Comcare submitted that this is the first step in the disciplinary process set out in the certified agreement between Defence employees and the Department of Defence.
17. The second point at which the disciplinary action could be said to have commenced is the letter from Carol Billett to Ms Duffy dated 21 April 2006 advising her that following the investigation by the Inspector General’s Group, the matter has been referred to her as the Secretary’s Delegate, to determine whether there has been a breach of the APS Code of Conduct.
18. The first point in time can be characterised as the commencement of investigation and the second as the determination. Given the reasoning and the decision in Eames, we are satisfied that the disciplinary action commenced with the investigation by the Inspector General’s Group, as notified in Colonel Petersen’s letter to Ms Duffy on 13 January 2006.
19. We turn now to the question of whether the aggravation of Ms Duffy’s condition was the result of the disciplinary action that commenced on 13 January 2006. We note that, in a letter to Dr Roberts, Psychiatrist, dated 18 October 2006, Dr Moddel said that he had first seen Ms Duffy in July 2005 with a recent episode of depression caused by some issues relating to her work; that she commenced anti-depressants and by September 2005 she was much better; that she attended again in January 2006 after her work situation had deteriorated following a determination that she had misused Commonwealth funds; and that she remained depressed as she felt she had been “falsely found guilty” and been treated unjustly and that she has commenced an appeal against the adverse findings. Dr Roberts, in his report dated 22 March 2007, stated that the cause of Ms Duffy’s Major Depressive Disorder was the difficulties she had with her superior at work, the investigation into her use of the Travel Card, and the prolonged nature of investigations thereafter. This is compelling evidence of Ms Duffy’s condition having been aggravated as a result of the disciplinary action. Even if other factors were also at play, then the judgment in Hart means that the exclusion still applies, if all other conditions are met.
20. We turn now to the question of whether the disciplinary action was reasonable.
21. Ms Duffy’s criticisms of the process of the disciplinary action may be summarised as follows:
●she had been a good employee for many years, had been psychiatrically unwell and had repaid the money;
● there was delay in the process;
● she was “badgered” in an interview by the Inspector General’s Group in February 2006;
● the Delegate did not send the papers to her;
● no notice was taken of her psychiatric condition; and
●a selection committee had knowledge of the investigation into her misuse of funds.
22. First, as to delay, from the date of formal notice of the inquiry to the date of the final determination is some five months and some eight months after the events were alleged to have occurred. They were significant events which involved public funds and the possibility of fraud and it would have been to Ms Duffy’s detriment if they had not been thoroughly investigated and considered. We do not consider the time taken to have been excessive or to have rendered the disciplinary action unreasonable.
23. As to whether Ms Duffy was provided with the relevant papers, we note Ms Duffy’s evidence that she obtained the papers from another source in any event and was not prevented or disadvantaged in her appeal to the Merit Protection Commissioner. She made no mention of any lack of papers to the Merit Protection Commissioner. It also seems that the papers she referred to in her evidence were papers that were generated after the final decision of the Delegate had been made.
24. The transcript of the interview by the Inspector General’s group in February 2006 does not support Ms Duffy’s claim of badgering. Rather, the interviewer appears to have been quite considerate of Ms Duffy’s distress and offered her time to rest and inquired as to whether she was alright. The interviewer’s questions appear to be, if anything, respectful. Ms Duffy was asked at the end of the interview whether she had any complaint about the conduct of the interview and she replied that she did not.
25. In relation to notice being taken by the Delegate of Ms Duffy’s medical condition, the report of the Delegate does in fact mention Ms Duffy’s “health issues” but notes that Ms Duffy had not elaborated on her condition. We note that Ms Duffy expressed the view that the Delegate should have obtained a report from Ms Duffy’s doctor and her criticism in this regard is based on the Delegate’s failure to do so and her advice to Ms Duffy that it was for her to obtain this. We consider this to have been a reasonable position for the Delegate to have adopted in circumstances where Ms Duffy was seeking to rely on her medical condition as a ground for leniency.
26. Ms Duffy was also concerned about the knowledge of the disciplinary action by a selection committee that had interviewed her for another position. According to the report of a later internal investigation into complaints made by Ms Duffy, Ms Duffy was not advised of the disciplinary action investigation in her interview on 5 December 2005 with the selection committee, but the Chairman of the committee was not advised of the investigation until 14 December 2005. According to the grievance report, the committee advised Ms Duffy of the investigation, and the committee’s knowledge of it, on 21 December 2005. We appreciate that for any job applicant such news would have been very disturbing and that, for Ms Duffy, it was a distressing development. We also note that the grievance report concludes that Ms Duffy was denied procedural fairness in that she was not given an opportunity to address the committee on the issue. However, the grievance report also concluded that it was reasonable in the circumstances for Colonel Petersen to advise the selection committee of the investigation, given the enquiry made by the committee and the security requirements of the position for which Ms Duffy had applied.
27. While we understand the distress these events may have caused to Ms Duffy, and we consider it unfortunate that she was not provided with an opportunity to speak to the selection committee about the investigation, it has no bearing on the reasonableness of the disciplinary action itself.
28. Ms Duffy’s good employment record, her psychiatric illness and her repayment of the money may all be matters to be taken into account when making a final determination in a disciplinary action. However, in circumstances where there has been a misuse of public funds, these matters do not of themselves make disciplinary action, including its investigation phase, unreasonable.
29. We consider that the disciplinary action that commenced on 13 January 2006, was reasonable disciplinary action.
30. Having also found that the disciplinary action contributed to the aggravation of Ms Duffy’s condition, we must conclude that, from 13 January 2006, she suffered no injury within the meaning of the SRC Act.
31. It follows that Comcare was liable under section 14 of the SRC Act for Ms Duffy’s depression up until 13 January 2006, from which time her condition was excluded from the definition of “injury” under the SRC Act by the operation of section 4.
32. We note that Dr Moddel’s clinical notes indicate that he was not consulted by Ms Duffy between July 2005 and January 2006. She did not submit any certificates of incapacity during that period. There is no evidence of further incapacity, or of any treatment for depression, between July 2005 and January 2006.
decision
33. The decision under review is varied as follows: Comcare has no liability under section 14 of the SRC Act in respect of Ms Duffy’s depression from 13 January 2006, the date of the commencement of reasonable disciplinary action by the employer.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .........................SGD...........................................................
AssociateDate/s of Hearing 2 and 3 February 2009
Date of Decision 17 April 2009
Counsel for the Applicant N/A
Solicitor for the Applicant Self-Represented
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Dibbs Abbottt Stillman Lawyers
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