Archer and Telstra Corporation Limited

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1227

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  W 200400386

GENERAL ADMINISTRATIVE DIVISION		)
Re		RICHARD ARCHER

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Ms L R Tovey, Member

Dr D Weerasooriya, Member

Date12 April 2007

PlacePerth

Decision The Tribunal affirms the decision under review.

.........(Sgd. Ms L R Tovey)..................

Member

5.      The term "disease" is defined in the same sub-section to mean:

"(a)     any ailment suffered by an employee; or

(b)       the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation."

6. The term "ailment" is in turn defined in s. 4(1) of the Act to mean:

"any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)".

7. Although it initially took the point, in the end Telstra did not seriously contest that at the relevant time the Applicant was suffering from an ailment, or the aggravation of an ailment, that was contributed to in a material degree by the Applicant's employment by Telstra. On all of the evidence, we are so satisfied. The real point of dispute between the parties is whether this disease was suffered by the Applicant as a result of reasonable disciplinary action taken against him or the failure of the Applicant to obtain a transfer or benefit in connection with his employment. If an affirmative answer is given to this question then the disease is not an "injury" by reason of the concluding words of the definition of that term, and Telstra is not liable to pay compensation to the Applicant under the Act.

8.      In order to rely on the exemption in the concluding words of the definition of "injury" it is not necessary for Telstra to show that one of the prescribed factors was the only, or the predominant, cause of the disease.  Rather, it is sufficient to exclude the disease from the definition of "injury" if one or more of the prescribed factors materially contributed towards the disease: Hart v Comcare (2005) 145 FCR 29 at 32-33.

9.      Telstra contended that the following factors each materially contributed to the Applicant's disease:

(a)Three verbal warnings which the Applicant was given in the weeks prior to the onset or aggravation of the disease, which is said to be reasonable disciplinary action for the purposes of the exclusionary part of the definition;

(b)A failure by the Applicant to obtain a transfer to a division of Telstra known as the SST working group;

(c)A failure by the Applicant to be excluded from the trial of a new piece of diagnostic equipment, known as the "riserbond", which is said to be a failure to obtain a benefit in connection with his employment by Telstra; and

(d)A failure by the Applicant to accumulate "CC points", which reflect the efficiency with which the Applicant performed his work, which…