ANNE DUFFY and COMCARE - [2009] AATA 252

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, Member
Date17 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, Member

1.      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…

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 ANNE DUFFY and COMCARE

Details

AGLC: ANNE DUFFY and COMCARE [2009] AATA 252
Case: [2009] AATA 252
Decision Date: 17 April 2009

CaseChat Overview and Summary

Anne Duffy and Comcare faced a dispute concerning a claim for compensation under sections 4 and 14 of the Safety, Rehabilitation and Compensation Act 1988. Duffy alleged that she suffered from depression as a result of her employment and sought compensation from Comcare. The central issue before the court was whether Comcare was liable for compensation for Duffy's depression from 13 January 2006, which was the date when her employer began reasonable disciplinary action against her. The court had to determine whether Duffy's condition constituted an injury or disease within the meaning of the Act, and whether the employer's conduct was reasonable and justified the disciplinary action taken.

The legal issue at the heart of this case revolved around the interpretation of the terms "injury" and "disease" under the Act, as well as the reasonableness of the employer's disciplinary action. The court had to consider the relevant case law, including Comcare v Eames, Hart v Comcare, and Weigand v Comcare, to assess the nature of Duffy's condition and the employer's response to it. The court also needed to evaluate whether the employer's conduct was reasonable and justified in light of the circumstances, and whether this conduct contributed to Duffy's condition. Ultimately, the court had to determine whether Comcare was liable for compensation under section 14 of the Act for Duffy's depression from the date the employer began reasonable disciplinary action.

The court held that Duffy's condition did not constitute an injury or disease within the meaning of the Act. The court found that the employer's conduct was reasonable and justified in light of the circumstances, and that the disciplinary action taken did not contribute to Duffy's condition. As a result, the court concluded that Comcare had no liability under section 14 of the Act for Duffy's depression from 13 January 2006, the date when the employer began reasonable disciplinary action against her. The decision under review was varied accordingly, and Comcare was found to have no liability for compensation in respect of Duffy's depression from that date.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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