Blauw and Comcare (Compensation)

[2017] AATA 1549

Blauw and Comcare (Compensation) [2017] AATA 1549 (27 September 2017)

Division:GENERAL DIVISION

File Number:           2016/1722

Re:Gabby Blauw

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:27 September 2017

Place:Brisbane

I affirm the decision under review.

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

Deputy President Dr P McDermott RFD

CATCHWORDS

COMPENSATION – accepted panic disorder condition – definition of injury – whether injury suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment – action to recall applicant to her substantive position is administrative – action taken in a reasonable manner - decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14

CASES

Commonwealth Bank of Australia v Reeve [2012] 199 FCR 463

SECONDARY MATERIALS

Defence Enterprise Collective Agreement 2012-2014.

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

27 September 2017

1. The applicant made an application on 24 August 2015 for compensation in relation to a panic disorder which she claims has developed as a result of her employment with the Department of Defence. A determination was made on 21 October 2015 that Comcare was liable to compensate the applicant.

2. A Comcare Review Officer made a decision on 4 February 2016 to set aside the earlier determination on the basis that the applicant’s claimed condition was suffered as a result of reasonable administrative action taken in a reasonable manner with respect to her employment, with the result that the applicant’s claim was excluded under section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

3. The applicant made an application on 4 April 2016 for review of that decision with the Tribunal.

   BACKGROUND

4. The applicant was employed by the Department of Defence in Brisbane, as a part of the Regional Integration and Coordination (RIC) team. The applicant was appointed to work in the Brisbane Base Support/Estate Services (DS-BNE) team for a temporary period from 4 May 2015 to 4 November 2015 for which the applicant would receive additional responsibility pay (“ARP”).

5. Around late June 2015 and early July 2015, the management in the DS-BNE and RIC teams undertook discussions about resourcing issues in the RIC team and the possible need to for the applicant to return to the RIC team, which management felt was the most feasible option to address the resourcing issues.

6. At a meeting on 13 July 2015 the applicant was advised by Mr Lee-Steere that she was required to return to the RIC immediately. At that meeting it was agreed that she could delay her start at the RIC and complete a training course.

7. On 13 July 2015 the applicant sent her supervisor a number of emails. In one email the applicant stated that she wished to consider her options before considering moving back to the RIC.[1] In a later email the applicant indicated that she wished to remain in BES and asked him to reconsider the decision.

   [1] Exhibit A, T-documents, T7.3 at p. 67

8. On 15 July 2015 Mr Lee-Steere advised Ms Beth Keating, the Acting Regional Direction, that the decision to return the applicant to RIC was “causing Gabby angst”. He recommended that she remain in the DS-BNE team.

9. Following the meeting that the applicant had with Mr Lee-Steere on 13 July 2015, the applicant suffered from a panic disorder.

   LEGISLATIVE FRAMEWORK

10. Section 14 of the Act establishes the liability of the Commonwealth to pay compensation in regards to an injury suffered by an employee if the injury results in death, incapacity for work or impairment.

11. Section 5 of the Act sets out the following:

    5A  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.

12. Section 5A(2) of the Act provides that:

    (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.’

13. Section 5B of the Act provides that:

    5B  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.

    EVIDENCE

14. Dr Bartholomew Klug, psychiatrist, completed a report dated 6 October 2015 which diagnoses the applicant with a panic disorder without agoraphobia, and dates the onset of clinically identifiable symptoms as 15 July 2015. Dr Klug concludes that the cause of the panic disorder is work related. This fact is not in contention by the parties and it is agreed, subject to the exception in section 5A(1) of the Act, that the applicant has suffered an ailment and that it was contributed to, to a significant degree, by the applicant’s employment such that she has a disease as defined in section 5B(1) of the Act.

15. There are in evidence a number of relevant statements. The statement of the applicant dated 4 September 2015[2], a statement of David Lee-Steere, dated 26 August 2016 which annexes an earlier statement made on 23 September 2015, and the statement of Beth Keating dated 21 September 2016.

    [2] Exhibit A, T-documents, T13 at pp. 84-95

16. Mr Lee-Steere in his statement of 26 August 2015 outlines that the applicant was successful in her expression of interest for the role in DS-BNE. He states[3]:

    “I do recall engaging the Acting Regional Director and Brisbane Base support Manager Glenda Hall to discuss how Ms Blauw might continue to assist RIC during her initial time with [DS-BNE]. It was agreed between all managers at the time, and Ms Blauw was engaged on this matter, that Ms Blauw would provide initial support to RIC in the form of one day a week while she was temporarily assigned to [DS-BNE]. This initial support was not fixed, although from memory the expectation was that she would work in RIC one day a week…for approximately four weeks.”

    [3] Exhibit F, Statement of David Lee-Steere, at [13]

17. Mr Lee-Steere goes on to highlight the circumstances of the unforeseen workload issues that arose[4]:

    “…the operational need did arise to return Ms Blauw to RIC earlier than had been anticipated when she took on the acting role in [DS-BNE]….”

    “[A colleague’s] absence on and from 19 August 2015, and the fact that [another colleague] could not ultimately step into her role on an acting basis until 3 September 2015, compounded the resourcing issues in RIC inasmuch as it led to increased work for the remaining RIC staff.”

    [4] Exhibit F, Statement of David Lee-Steere, at [16]

18. Mr Lee-Steere then goes on to state that around late June and early July 2015 he had discussions with Ms Keating regarding options for meeting the resourcing uses which had arisen in RIC, one of the options being to have Ms Blauw return to RIC temporarily and earlier than initially anticipated following her appointment to the acting role.[5] He also states that around the same time, he had a discussion with Ms Keating and Ms Hall, where Ms Hall provided an unfavourable assessment of the applicant’s work in the new team. Mr Lee-Steere confirms that while this was not determinative, the applicant’s work performance was a factor taken into account in deciding what action would be taken to address the resourcing issues that had arisen in the RIC team.

    [5] Ibid at [17]

19. There are a number of contemporaneous emails around the date of the meeting on 13 July 2015.[6] These emails indicate that the evidence of Mr Lee-Steere and Ms Keating in their statements can be relied upon as an accurate account of the subject matter of the meeting itself and the need for the applicant to return to her role in the RIC team.

    [6] See Exhibit A, T-documents, T7.3 at pp. 62-67

    SUBMISSIONS

20. The contentious issue in this matter is whether there was reasonable administrative action and if yes, whether this administrative action was taken in a reasonable manner in respect of the applicant’s employment such that the exception in section 5A of the Act applies.

21. The applicant submits that the relevant ‘action’ for the purposes of section 5A of the Act is “the decision to require the applicant to undertake duties in the RIC team” which was conveyed to the applicant in the meeting on 13 July 2015. The respondent submits that the relevant action is “the decision by Ms Keating to return the applicant to work in the RIC team earlier than expected” and communicated to the applicant in the meeting on 13 July 2015. While the parties have framed this relevant ‘action’ somewhat differently in order to argue that this decision was operational or administrative in nature, essentially the parties agree that the relevant action in this case is the decision that the applicant was to again carry out responsibilities for the RIC team, and no longer for the DS-BNE team, earlier than November 2015 while retaining her ARP.

22. The applicant submits that the nature of the action is such that it was operational action, not of an administrative nature as it was an ‘ordinary feature’ or ‘part and parcel’ of the applicant’s position in the DS-BNE team that she would continue to do duties as required for RIC. On that basis, the applicant submits that the requirement for her to move back to RIC is an action where she would continue to carry out duties in the RIC team, whilst maintaining her ARP, and as such was an ordinary feature of her employment. The applicant further submits that if the action is found to be administrative, then it was an action taken in an unreasonable manner because the applicant was not afforded procedural fairness. The applicant was not given any advance notice of the meeting, or any warning about the subject matter of the meeting, and the decision to move the applicant back to the RIC team had already been made by the respondent such that she was not afforded an opportunity to make submissions about the movement decision.

23. The respondent submits that the action was administrative in nature as the applicant’s appointment to the DS-BNE team was as a result of a successful merits-based process, where the applicant attained a temporary role with duties that were different to those in her substantive role. The respondent submits that it cannot be operational action as the decision to temporally transfer the applicant to DS-BNE then subsequently be recalled to the RIC was not an ordinary feature of her employment and further that the decision to recall the applicant was done in connection with her failure to retain a benefit: see section 5A(2)(f) of the Act.

24. The respondent further submits that the decision to recall the applicant to her substantive role was reasonable as it was a matter of operational need; the applicant was afforded procedural fairness because the meeting of 13 July 2015 is properly characterised as the first step in a consultative process in which the applicant was advised of the resourcing issue and management’s view that she should return to the RIC team. The applicant was then given an opportunity to feedback into the decision, as is indicated in the emails exchanged between the applicant and Mr Lee-Steere following the meeting, and the applicant’s response was taken into account when deciding that she would remain in the DS-BNE team.

    CONSIDERATION

25. A difficulty that is faced by the Tribunal is that the applicant did not attend the hearing of her application. The Tribunal did not receive any advance notice that the applicant would not attend the hearing of her application. The applicant therefore did not provide any oral evidence in support of her application, neither was she available for cross-examination. The Tribunal was not provided with any evidence that the applicant was unable to attend the hearing because of medical reasons. In the circumstances, counsel for the applicant has quite properly conceded that the version of events provided by the respondent’s witnesses may be preferred where there is a conflict of evidence between that witness and the statements of the applicant.

26. There is a conflict in the evidence between the applicant and management. Ms Keating in a statement dated 21 September 2016 stated that prior to her transfer the applicant gave an assurance that she would assist the RIC as needed whist she was undertaking duties in DS-BNE. This has been denied by the applicant in her statement of 21 October 2016.

27. However, in the applicant’s own statement of 4 September 2015 she stated that between May and June 2015 she was continually called upon at very short notice to go and work in the RIC team. There was certainly no suggestion in her statement of 4 September 2015 that she would not be required to continue duties in the RIC. I consider that the account of Ms Keating is more plausible because management would want to ensure that a staff member who had experience in the RIC team was on hand to perform duties in the RIC as required and I find that the applicant did give an assurance that she would assist the RIC team as needed while she was undertaking duties in the DS-BNE team.

28. At the meeting on 13 July 2015 the applicant was advised that she was to immediately carry out responsibilities for the RIC team. The decision for her to work for the RIC team was made by Ms Keating and communicated to the applicant by Mr Lee-Steere. Dr Klug in his report has reported that the applicant first noticed the panic disorder condition on 13 July 2015. I accept the submission of the applicant that Dr Klug has identified that the meeting between the applicant and Mr Lee-Steere is the action which contributed to a significant degree to the panic disorder condition. I have to determine whether the direction at the meeting was ‘reasonable administrative action’ for the purposes of section 5A(1) of the Act.

29. In Commonwealth Bank of Australia v Reeve [2012] 199 FCR 463 (“Reeve”) it was held that any action must be taken in respect of the employee’s employment (per Rares and Tracey JJ at [56]. The words ‘in respect of’ have been regarded as referring to “action directed specifically to the employee as opposed to affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment” (per Rares and Tracey JJ at [57]). I consider that the direction at the meeting on 13 July 2015 must be regarded as being action taken in respect of the applicant’s employment. This is because it related to the identified need of the applicant to work in her substantive position in the RIC team and is central to the relationship of employment. I find that the direction was “action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer” (see Reeve at [33] per Gray J).

30. In Reeve, their Honours emphasised that the instances that are given in section 5A(2) of the Act do not confine the meaning of the expression ‘reasonable administrative action’ in section 5A(1) of the Act (per Gray J at [1], per Rares and Tracey JJ at [62]). In Reeve, at [52], Rares and Tracey JJ remarked that the ordinary and natural meaning of ‘administrative’ was regarded as the management of a body or enterprise. Reference was also made to “relating to administration” (‘administration’ being defined as “the management or direction of any office or employment” according to the Macquarie Dictionary).

31. I am of the opinion that the direction to the applicant to work in the RIC team was ‘reasonable administrative action’. The direction was ‘reasonable’ because the applicant already had a substantive position in the RIC team and was the most experienced person who was available to do the work in that team. I also consider that the decision for the applicant to retain her ARP, which she gained upon obtaining the temporary transfer, was also reasonable in that the applicant would not suffer a loss of pay in working in the RIC team.

32. The direction was ‘administrative action’ because the direction related to the management of an employee in directing her to resume work in her substantive position in the RIC team. There is no evidence that at the meeting on 13 July 2015 the applicant was given a direction “intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so” (see Reeve at [74] per Rares and Tracey JJ).

33. The definition of ‘reasonable administrative action’ in section 5A(2)(f) of the Act is taken to include anything reasonable done in connection with the employee’s failure to retain a benefit in connection with her employment. In her note about what happened on 13 July 2015, the applicant referred to “the opportunity or experience in my new role in DS-BNE”. The applicant in her email of 20 July 2015 indicated that returning to the RIC team would be “taking away a learning experience for me”. Having regard to these statements of the applicant, I have concluded that the experience of being in the DS-BNE team was a “benefit” that the applicant wished to retain. I therefore consider that the meeting was ‘reasonable administrative action’ within the meaning of section 5A(2)(f) of the Act. I also consider that the decision to ask the applicant to return to RIC was “reasonably done” in terms of section 5A(2)(f) of the Act because the applicant already had a substantive position and was experienced working in the RIC team, and had already worked in the RIC team since her temporary transfer.

34. One of the matters that I have to consider is whether the action was taken in a reasonable manner. The applicant has contended that she was not given any advance notice of the meeting which was held on 13 July 2015. However, the applicant has stated on 30 June 2015 that she was advised by a member of the team Directorate Business Operation (BDO) that Mr Lee-Steere wanted to talk to her about her earlier return to the RIC team.[7] In her email of 20 July 2015, the applicant was advised by a member of the BDO team that “David wanted to discuss with me my early return to the RIC”.[8]

    [7] Exhibit A, T-documents, T13 at p. 84

    [8] Exhibit A, T-documents, T7.3 at p. 62

35. As the applicant was not available to give evidence at the hearing she could not be asked which member of the BDO team had informed her that Mr Lee-Steere wanted to talk to her about an earlier return to RIC. Prior to the meeting, Ms Hall was informed by Mr Lee-Steere of the decision to return the applicant to work in the RIC team, the applicant stated that this occurred on 10 July 2015. I have made an inference that the applicant would have been informed by Ms Hall of what was being planned, although as the applicant did not given evidence she could not be examined about this.

1. In these circumstances where the applicant had advance notice of about one month about her return to the RIC team I do not consider that it was unreasonable or necessary to provide the applicant with advance notice of the meeting. The applicant already held a substantive position in the RIC team and had been required to undertake duties in RIC during her temporary transfer to the DS-BNE team. She was aware of the need for her to work in the RIC team. Since her temporary transfer to DS-BNE, the applicant had already done work in the RIC team and there was no obvious need for advance notice of the meeting to be given particularly, as I have found that prior to her transfer the applicant gave an assurance that she would assist the RIC team as needed.

2. The applicant has contended that she was not afforded procedural fairness by Mr Lee-Steere in accordance with the Defence Enterprise Collective Agreement 2012-2014. While Mr Lee-Steere had indicated that he wanted the applicant to return to the RIC team immediately, he listened to the concerns of the applicant and allowed her to delay her work in the RIC team so that she could attend a scheduled training course. Mr Lee-Steere then allowed the applicant to return to RIC the following week on 20 July 2015.

3. When the applicant later on 13 July 2015 asked Mr Lee-Steere to reconsider his decision he made a recommendation to Ms Keating that the applicant remain in DS-BNE. Ms Keating accepted this recommendation. Having regard to these circumstances, I consider that the applicant was afforded procedural fairness. I do not consider that the reasonable administrative action can be found to not be taken in a reasonable manner. Certainly, Ms Keating made it clear that she would never have endorsed a proposal to force the applicant to return to the RIC team without her consent, her evidence was not challenged. If it were otherwise the applicant would have been returned to work in RIC against her wishes, and that certainly did not occur.

4. The applicant contended that Mr Lee-Steere did not give the applicant any opportunity to have another person such as Ms Hall present at the meeting. I do not consider that it was necessary for another person to be present at the meeting. There was, for instance, no suggestion that the applicant was facing disciplinary action or a performance review. While Ms Keating had asked Mr Lee-Steere to ensure that Ms Hall, who supervised the applicant in DS-BNE, be “included in that discussion”, this could not be construed as a direction for Ms Hall to be present at the meeting but rather informed of what work the applicant would do in the future and made aware of what was passed onto the applicant. I have already mentioned that before the meeting of 13 July 2015 Ms Hall had already been informed by Mr Lee-Steere of the decision for the applicant to return to the RIC team.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated: 27 September 2017

Date of hearing:	16 March 2017
Date final submissions received:	26 April 2017
Counsel for the Applicant:	Matt Black
Solicitors for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Gim del Villar
Solicitors for the Respondent:	Australian Government Solicitor