BRETT MCGEE and COMCARE

[2010] AATA 386

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 386

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4725

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRETT MCGEE

Applicant

And COMCARE

Respondent

DECISION

Tribunal G.D. Friedman, Senior Member

Date24 May 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

...............[signed]................

Senior Member

COMPENSATION – depressive disorder – fraud investigator – whether condition resulted from reasonable administrative action taken in a reasonable manner – whether condition was an injury

Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14(1)

Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16

Hart v Comcare (2005) 145 FCR 29

Re Lynch and Comcare [2010] AATA 38

Re von Stieglitz and Comcare [2010] AATA 263

Workcover Corporation of South Australia v Summers (1995) 65 SASR 243

REASONS FOR DECISION

24 May 2010  G.D. Friedman, Senior Member

1.      Brett McGee works for the Australian Taxation Office (ATO) investigating the alleged selling and distribution of illegal tobacco.  On 14 January 2008 he claimed compensation for a depressive condition for which he first sought treatment on 7 November 2007.  He said the work-related matters that caused his condition were harassment and bullying by an officer investigating the arrest in 2004 of Mr McGee’s mentor; the complaint by a colleague about the behaviour of officers involved in an operation in which Mr McGee took part; and a proposed transfer to a workplace located with investigators involved in the matter concerning his mentor.  The respondent refused the claim on the grounds that Mr McGee’s condition was the result of reasonable administrative action taken by the ATO in dealing with the matters.

LEGISLATIVE BACKGROUND

2. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), provides that:

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.

Injury is defined in section 5A of the SRC Act:

(1)      In this Act:

injury means:

(a)       a disease suffered by the employee; or

(b)an injury (other than a disease) suffered by the 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…