Baker and Comcare (Compensation) - [2017] AATA 1050

Baker and Comcare (Compensation) [2017] AATA 1050 (4 July 2017)
Division:GENERAL DIVISION
File Number: 2014/6385
Re:Kerry Baker
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:4 July 2017
Place:Melbourne

The Tribunal affirms the decision under review.
..................................[sgd]......................................
Regina Perton, Member
COMPENSATION – employment by Australian Competition & Consumer Commission – major depressive disorder – refusal of application for studies assistance - whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether applicant entitled to compensation for incapacity – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A(1), 5A(2), 5B(1), 5B(2), 5B(3), 14(1)
Comcare v Martin (2016) 153 ALD 167
Comcare v Martinez (No 2) (2013) FCR 272
Comcare v Mooi (1996) 69 FCR 439
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare (2005) 145 FCR 29
Lim v Comcare [2017] FCAFC 64
REASONS FOR DECISION
Regina Perton, Member
4 July 2017

Ms Kerry Baker joined the Australian Competition & Consumer Commission (ACCC) in 2010. She currently works for the ACCC in Melbourne as the Assistant Director, Project Management Office (PMO) at the classification of Executive Level 1 (EL 1). She lodged a claim for compensation on 19 June 2014 for a psychological condition which she described as depression and stress that she stated occurred on or about 11 May 2014 as a result of a refusal of study support under the ACCC’s Studies Assistance Scheme (SAS) in relation to her enrolment in a Master of Laws (Juris Doctor) degree (the law course) at Monash University in 2014.
On 12 August 2014 Ms Baker’s claim was refused by the Comcare, which found that her condition of major depressive disorder, single episode was significantly contributed to by her employment but had arisen from reasonable administrative action taken in a reasonable manner by the ACCC in the process of refusing the application for studies assistance. On 18 November 2014 Comcare affirmed the decision. On 11 December 2014 Ms Baker sought review of the decision by the Tribunal.
LEGISLATIVE BACKGROUND
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
Compensation for injuries
(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
...
Section 5A of the SRC Act states:
Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include…

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 Baker and Comcare (Compensation)

Details

AGLC: Baker and Comcare (Compensation) [2017] AATA 1050
Case: [2017] AATA 1050
Decision Date: 4 July 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Baker against a decision by Comcare to refuse her claim for compensation. Comcare had determined that Ms Baker's condition of major depressive disorder, single episode, was significantly contributed to by her employment but had arisen from reasonable administrative action taken in a reasonable manner by the ACCC in relation to her application for studies assistance. Comcare subsequently affirmed this decision.

The primary legal issue before the Tribunal was whether Ms Baker had suffered an "injury" as defined by the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Specifically, the Tribunal had to consider whether the exclusionary proviso within the definition of injury, which excludes conditions arising from reasonable administrative action taken in a reasonable manner, applied to Ms Baker's circumstances. This involved determining if the ACCC's actions regarding her studies assistance application constituted reasonable administrative action taken in a reasonable manner.

The Tribunal applied the principles established in *Hart v Comcare* (2005) 145 FCR 29, which held that if a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso of section 5A(1) of the SRC Act, it is not considered an injury, regardless of whether it also arose from other employment-related circumstances. Based on its findings that the administrative action concerning the studies assistance event was reasonable and taken in a reasonable manner, the Tribunal concluded that Ms Baker's condition fell within the exclusionary proviso.

Consequently, the Tribunal affirmed Comcare's decision. As Ms Baker's condition was found to have arisen from reasonable administrative action taken in a reasonable manner, she was not entitled to compensation under the SRC Act, and it was unnecessary to consider other potential employment-related events.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 12 August 2014 Ms Baker’s claim was refused by the Comcare, which found that her condition of major depressive disorder, single episode was significantly contributed to by her employment but had arisen from reasonable administrative action taken in a reasonable manner by the ACCC in the process of refusing the application for studies assistance. On 18 November 2014 Comcare affirmed the decision. On 11 December 2014 Ms Baker sought review of the decision by the Tribunal.LEGISLATIVE BACKGROUND Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:Compensation for injuries(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... Section 5A of the SRC Act states:Definition of injury(1)In this Act:injury means:(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:(a)a reasonable appraisal of the employee’s performance;(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;(c)a reasonable suspension action in respect of the employee’s employment;(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. Section 5B of the SRC Act states:Definition of disease(1)In this Act:disease means:(a)an ailment suffered by an employee; or(b)an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:(a)the duration of the employment;(b)the nature of, and particular tasks involved in, the employment;(c)any predisposition of the employee to the ailment or aggravation;(d)any activities of the employee not related to the employment;(e)any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.(3)In this Act:significant degree means a degree that is substantially more than material

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In Hart v Comcare (2005) 145 FCR 29 the Federal Court of Australia held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in s 4(1) of the SRC Act, that disease is not an injury (as defined in s 4(1) and later applied to s 5A of the SRC Act), and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. In other words, in order for the proviso to apply, it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances. In view of the Tribunal’s findings regarding reasonable administrative action in respect of the studies assistance event, Ms Baker is not entitled to compensation under the SRC Act, and there is no need to consider whether the administrative action in respect of the HR event, the Voluntary Redundancy event or the second studies assistance event satisfy the criteria for excluding the condition from the definition of injury.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Ms Gail Neumann, former Director, Human Resources Branch of the ACCC, made a written statement dated 30 September 2015. In it she said that Ms Baker was told on 6 June 2011 that her position was to be relocated to Canberra and that if she did not move, she would become an excess officer. Ms Neumann said that she had no reason to doubt that Ms Baker suffered distress and injury from the meeting of 6 June 2011 and the subsequent handling of her placement at the ACCC. She added that in June 2011 she was told by Ms Schumann and another senior officer that she (Ms Neumann) was too long in the tooth to be considered for succession planning within the HR area of the ACCC. In oral evidence Ms Neumann stated that she joined the TPC in 1990 and retired from the ACCC in 2012. She stated that she was the delegate for approving studies assistance for a number of years. She said that discussions would be held between a staff member and the person’s manager about possible applications for studies assistance through personal development planning before an application for studies assistance could be made.Consideration An examination of Ms Baker’s leave records and the clinical notes of her general practitioner, together with her evidence at the hearing, indicate that Ms Baker did not require medical treatment for any clinically significant mental health or psychological condition associated with her employment and was not incapacitated for work prior to May 2014. She first attended her general practitioner for stress and depressive symptoms on 14 May 2014 in connection with the studies assistance event, and was referred to a psychologist. In all the circumstances, the Tribunal finds that the date of the disease suffered by Ms Baker is 14 May 2014. DID MS BAKER SUFFER AN INJURY?EvidenceMs Baker Ms Baker stated that the first studies assistance event was conducted in an unreasonable manner. She told the Tribunal that the internal processes involving the initial decision, reconsideration and review were carried out in a way that excluded her. She said that the decision was based on age discrimination and not on operational need, which she said was consistent with the treatment she had experienced in 2011. Ms Baker explained that when she received an offer from Monash University of a place in its law course in November 2013, she informed Mr Conlon that she had satisfied one of the items in her Individual Action Plan (IAP), which replaced the former Personal Development Plan (PDP) that had been discussed and agreed to between them. She said that in December 2013, after lodging her application for studies assistance, Mr Conlon told her he had recommended against approval of the application because of budgetary constraints within the ACCC. On 23 December 2013 Ms Baker sought reconsideration by Mr Walkden of the initial decision to refuse her first application for studies assistance. She submitted to Mr Walkden that she had not previously been granted study support; a law degree was directly relevant to the ACCC; her enrolment would support diversity within the ACCC; studying law would broaden her opportunities within the ACCC and the broader Australia Public Service; and enrolment in a university course was specified in her approved IAP. On receipt of the request for reconsideration, Mr Walkden invited Ms Baker to clarify some of the points she had made, and she responded on the same day. She submitted to Mr Walkden that the course would assist her career development because her current role in the PMO was not permanent and she had no career path in her role in Melbourne; the maximum five hours’ study could be accommodated within her existing workload; the workload of the IMTS had declined, despite staff losses; study support was a long-term strategic investment in staff; and the ACCC had invested significant amounts of money in the promotion of improvement in wellbeing and quality of life of its staff. Ms Baker said that on 7 January 2014 Mr Walkden informed her that he taken her submissions into account but had decided to affirm his decision to refuse her application.