Bracken and Australian Postal Corporation

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 939

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          A2003/284
  )          A2003/285

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GLENN BRACKEN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date10 September 2004

PlaceCanberra

Decision

The decisions under review in applications A2003/284 and 285 are set aside and in substitution thereof the Tribunal decides that Mr Bracken suffered an injury (aggravation of depression) on 8 August 2002 in relation to which Australia Post is liable to pay compensation.

Australia Post is to pay Mr Bracken’s reasonable costs in these proceedings as agreed or taxed.

..............................................

Mr S. Webb, Member

24.     On 29 May 2003 Australia Post determined to reject Mr Bracken’s claim (BT24).

25.     On 11 July 2003 in a reviewable decision an Australia Post delegate affirmed the determination to deny Mr Bracken’s January 2003 compensation claim, observing (BT31):

“It is concluded that [Mr Bracken’s] inability to deal with the reasonable demands of his duties has been the causal factor in his medical condition, rather than the duties themselves in his facility.”

On the same day the determination denying Mr Bracken’s May 2003 compensation claim was affirmed in a reviewable decision.  The delegate stated (BT32 folio 79):

“I note the report from the manager Tony Branson dated 23/5/03 in relation to the meeting that occurred on 14/4/03 and I am satisfied that it meets with reasonable disciplinary practice.

Therefore… I am satisfied that any condition [Mr Bracken] alleges to be suffering from has arisen out of reasonable disciplinary action and as such falls under the exclusionary provision of the SRC Act 1988.”

26.     By applications A2003/284 and 285 to this Tribunal Mr Bracken pursued his rights of review in relation to the reviewable decisions concerning depression and stress.

legal principles

27.     Mr Bracken’s applications rise for consideration under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).  Liability to pay compensation arises in relation to an injury.  “Injury” is defined to include a “disease”, which is defined to be an ailment that is materially contributed to by employment (s.4).  The definition of “injury” excludes a disease that is the result of reasonable disciplinary action. 

28.     In Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 (see paragraphs 24 to 32) Cooper J considered the disciplinary exclusion to the definition of “injury” and observed that “The only matters which fall to be determined under the definition are: (a) Was the action which resulted in the injury disciplinary action?  (b) If “yes”, was it reasonable?”.  Cooper J was of the opinion that disciplinary action could not be found unless the following questions were answered:

“1.  What discipline or rules of conduct apply to an employee of

the Commonwealth?

2.   In what circumstances can the Commonwealth as an employer

take action of a disciplinary nature to enforce the

discipline or rules of conduct against an employee?

3.   What type of action may the Commonwealth…