Cassandra Lee and Comcare

Case [2012] AATA 867

[2012] AATA 867 

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/3737

Re

Cassandra Lee

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President P E Hack SC
Date 10 December 2012
Place Brisbane

The decision under review is affirmed.

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

Deputy President P E Hack SC

CATCHWORDS

COMPENSATION – psychological injury – host employment placement – sudden termination – whether reasonable administrative action taken in a reasonable manner – decision under review affirmed.

LEGISLATION

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

CASES

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463

Re Webster and Comcare [2011] AATA 330

REASONS FOR DECISION

Deputy President P E Hack SC

10 December 2012

Introduction

  1. By virtue of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee that results in death, incapacity for work or impairment. But the definition of “injury” in s 5A(1) of that Act excludes a condition that would otherwise satisfy the definition if the condition was a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. This case concerns that exclusion.

  2. The applicant in these proceedings, Ms Cassandra Lee, was a long-term employee of the Department of Defence (Defence) but from late 2009 was seconded to work in the Australian Electoral Commission (AEC) office in Cairns.  In May 2010, in circumstances described in greater detail below, that secondment came to an abrupt end.  Thereafter Defence refused Ms Lee’s application that she be paid miscellaneous leave from 1 July 2010.  The undisputed medical evidence is that in October 2010 these two actions caused the onset in Ms Lee of a condition described as chronic adjustment disorder with anxiety and depressed mood. It is common ground between the parties that those actions amount to administrative action taken in respect of Ms Lee’s employment,

  3. Comcare accepts that the condition was contributed to, to a significant degree, by Ms Lee's employment by the Commonwealth, thus satisfying the statutory definition of “disease”.  The contest in the present case is whether the two administrative actions that have been identified were “reasonable” and were “taken in a reasonable manner”.

    Background

  4. The relationship between Ms Lee and Defence has a long and unfortunate history, not all of which needs to be recited.  That history, so far as it is relevant to these proceedings, is not in dispute. What follows is, by and large, taken from the contemporaneous documents. A convenient starting point to the history is the judgement of the Federal Magistrates’ Court of 6 July 2007[1] in proceedings brought by Ms Lee against the Commonwealth of Australia and other employees of the Commonwealth who had discriminated against her in the course of her employment. That conduct caused Ms Lee to suffer a psychiatric illness.  One of the terms of the orders made was that,

    …when [Ms Lee] initially returns to work…

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AGLC
Cassandra Lee and Comcare [2012] AATA 867
Case
[2012] AATA 867
Decision Date

CaseChat Overview and Summary

In the case of Cassandra Lee and Comcare, the applicant, Ms Lee, sought compensation from Comcare for a psychological injury she claimed was caused by her employment by the Commonwealth. The dispute centered on whether the administrative actions taken by the Commonwealth were reasonable and taken in a reasonable manner, which would exclude them from the definition of "injury" under the Safety, Rehabilitation and Compensation Act. The Federal Circuit Court was tasked with deciding whether the termination of Ms Lee's host employment placement with the Australian Electoral Commission (AEC) and the refusal of her request for paid miscellaneous leave were reasonable administrative actions taken in a reasonable manner.

The court considered the legislative framework which excludes from the definition of "injury" any disease, injury, or aggravation resulting from reasonable administrative action taken in a reasonable manner. The medical evidence showed that Ms Lee's condition was significantly contributed to by her employment, but the court had to determine if the actions taken by the Commonwealth were reasonable. Ms Lee argued that certain steps leading up to the termination of her employment and the refusal of leave were unreasonable. The court examined the arguments and the context of the administrative actions, concluding that both the termination of her placement with the AEC and the refusal of her leave request were reasonable actions taken in a reasonable manner.

Ultimately, the court found that the administrative actions were reasonable and taken in a reasonable manner, thus excluding them from the definition of "injury" under the Act. Consequently, the court affirmed the decision under review, dismissing Ms Lee's claim for compensation. The court's reasoning focused on the plain language of the legislation and the reasonable nature of the administrative actions taken by the Commonwealth.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Comcare accepts that the condition was contributed to, to a significant degree, by Ms Lee's employment by the Commonwealth, thus satisfying the statutory definition of “disease”. The contest in the present case is whether the two administrative actions that have been identified were “reasonable” and were “taken in a reasonable manner”.Background The relationship between Ms Lee and Defence has a long and unfortunate history, not all of which needs to be recited. That history, so far as it is relevant to these proceedings, is not in dispute. What follows is, by and large, taken from the contemporaneous documents. A convenient starting point to the history is the judgement of the Federal Magistrates’ Court of 6 July 2007[1] in proceedings brought by Ms Lee against the Commonwealth of Australia and other employees of the Commonwealth who had discriminated against her in the course of her employment. That conduct caused Ms Lee to suffer a psychiatric illness. One of the terms of the orders made was that,…when [Ms Lee] initially returns to work she be employed by [the Commonwealth] in a department other than the Department of Defence.[1] See Lee v Smith (No 2) [2007] FMCA 1092. Following that judgement arrangements were made by Defence to assist in Ms Lee's rehabilitation back into the workforce. The details are not presently relevant however by February 2008 Ms Lee was regarded by Dr Paul Trott, her treating psychiatrist, as[2],… medically fit to perform duties associated with APS Level 3 and 4…Within the Australian Public Service clerical and administrative employment is classified according to an APS scale from Level 1 to Level 6. Dr Trott considered that she[3],… should be able to return to work on a full-time basis of [sic] approaching 37.5 hours per week...There was no medical evidence that Ms Lee was not fit to return to full-time work in September 2009 when the arrangements described below were being put in place.[2] Exhibit 1, page 115.[3] Exhibit 1, page 115. During 2009 efforts were made by Defence to obtain employment for Ms Lee in other Commonwealth agencies, an arrangement described as a “host placement”. Those efforts came to fruition in September 2009 when the AEC agreed to Ms Lee being placed at its Cairns office for a period, initially, of seven months. Ms Lee agreed to that placement. Mr Tony Anderson was the Divisional Returning Officer for the seat of Leichardt and thus the manager, in substance if not in name, of the Cairns office of the AEC. The arrangements between Defence and the AEC contemplated that Mr Anderson would be Ms Lee's supervisor although, given that Defence remained responsible for the payment of her salary, matters of leave, salary and other entitlements were required to be handled through Defence. Ms Lee was provided with further details of the placement with the AEC by e-mails of 7 October 2009[4] and 13 October 2009[5] from Ms Lyn Ivers (Ms Lee's rehabilitation case manager) and Ms Sondra Carr (the senior case manager) respectively. The e-mail of 7 October 2009 informed Ms Lee that Ms Debra Kapelis, a psychologist and private rehabilitation consultant, had been engaged to provide return to work support during the course of the seven-month anticipated term of the engagement with the AEC. The latter e-mail noted that Ms Lee had been sent the duty statements for the APS2, APS3 and APS6 positions at the AEC to give her an idea “of the type of work AEC undertake.”[4] Pages 17-18 of the annexures to exhibit 3.[5] Page 21 of the annexures to exhibit 3.

Evidence

Evidence Before The Court

That decision was affirmed on reconsideration on 7 July 2011. These proceedings were commenced on 5 September 2011.The medical evidence There is agreement between the psychiatrists, Dr Trott and Dr Jetnikoff, that Ms Lee suffered from chronic adjustment disorder with anxiety and depressed mood, that that condition arose in October 2010 and that it was contributed to, to a significant degree, by Ms Lee's employment by the Commonwealth. They also agree[32] that the adjustment disorder arose as a result of the cessation of Ms Lee's employment with the AEC and the refusal of miscellaneous leave with pay.[32] As do the parties: see exhibit 14, paragraph 4 and exhibit 13, paragraph 8. Dr Trott, in his report of 2 June 2011[33], says:However, with the unfortunate sudden termination of her employment with the Australian Electoral Office, as well as ongoing tensions with the Department of Defence (Townsville Office), and with the withholding of her pay that has placed Ms Lee under financial hardship; Ms Lee has since suffered an illness relapse. That is, there has been a separate culmination of stressors that has exacerbated the former complex conflict relating to the original work injury; whereby she had been the unfortunate victim of sexual assault, as well as sexual harassment and bullying in the workplace; and that she had felt unsupported by her employer. Ms Lee has developed a second Adjustment Disorder with Mixed Anxiety and Depressed Mood as defined in the DSM IV, which is still connected to the original workplace injuries given the complexity of the conflict with the Department of Defence (and especially the Townsville Office); whereby there has been a sensitisation, if not a re-traumatisation. Dr Jetnikoff's evidence is to similar effect. He says[34],Ms Lee developed the condition out of a psychologically reasonable functioning state when working at the AEC after a five month period of trying to negotiate a suitable employment alternative and having financial hardship. It was after being removed from the AEC host placement and suffering from financial hardship with the subsequent negotiations regarding alternative employment and accessing leave to her satisfaction that she developed increased frustration and ultimately the Adjustment Disorder that she is now suffering.…The significant contributing factors were the sudden, abrupt removal from host employment based on the medical opinion of Professor Morris as communicated through the Department of Defence with the host employer, the subsequent financial hardship and the inability to negotiate a successful alternative employment placement, although I note an employment option was provided by November 2011 after she had become unwell.[33] Exhibit 6 at page 6.[34] Exhibit 11 at pages 9 – 10. The legislation Brief reference only is needed to the legislation. As has already been noted, Comcare is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act in respect of an injury suffered by an employee. The term “injury” is defined in s 5A(1) of that Act to mean:(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.And “disease” was defined by s 5B(1) as,(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.Here, the contribution, to a significant degree, is conceded.Consideration

Decision

Reasons for decision

In the result I am satisfied that the decision to refuse Ms Lee’s request for paid miscellaneous leave was both reasonable and was taken in a reasonable manner.Conclusion In light of these conclusions I am satisfied that each of the administrative actions which have been identified as causing Ms Lee's condition was a reasonable administrative action taken in a reasonable manner in respect of Ms Lee’s employment. That being so the condition suffered by Ms Lee, although satisfying the definition of “disease” in the SRC Act, does not satisfy the definition of “injury”. It follows that the decision under review will be affirmed.

Ratio Decidendi

Legal Principle Established

Brief reference only is needed to the legislation. As has already been noted, Comcare is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act in respect of an injury suffered by an employee. The term “injury” is defined in s 5A(1) of that Act to mean:(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.And “disease” was defined by s 5B(1) as,(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.Here, the contribution, to a significant degree, is conceded.Consideration Ms Lee conceded that the two actions – the termination of the AEC placement and the refusal of miscellaneous leave – amount to administrative action taken in respect of her employment. Having regard to the conclusions of the Full Federal Court in Commonwealth Bank of Australia v Reeve[35] I do not doubt that the concession was rightly made. The issue is whether the actions identified were reasonable and were undertaken in a reasonable manner.[35] [2012] FCAFC 21; (2012) 199 FCR 463. Ms Lee’s case was that the cessation of her host placement with the AEC and the decision to decline her application for miscellaneous leave with pay were neither reasonable, nor taken in a reasonable manner because various steps, identified in particulars provided by her[36], leading up to, or forming part of those actions were unreasonable. Those particulars provide a convenient means of dealing with the arguments presented. Before doing so I should deal with some preliminary matters.[36] Exhibit 10. There was some discussion during the course of submissions about the identity of the employer: was it Defence or the AEC or both. On reflection, the answer is that it is Ms Lee's employment by the Commonwealth that must be examined; the ailment was contributed to, to a significant degree, by that employment. Thus it matters not which emanation of the Commonwealth was paying Ms Lee's salary nor which emanation was responsible for the various acts or omissions put in issue in the proceedings. Whichever emanation was directly responsible, ultimately the Commonwealth was her employer. Next, I note that I do not consider the expressions “reasonable administrative action” and “taken in a reasonable manner” to be susceptible of any detailed analysis. I agree, with respect, with the following observations of Senior Member McCabe and Brigadier Maynard, Member, in Re Webster and Comcare[37],A good deal has already been written about the meaning of the expression "reasonable administrative action taken in a reasonable manner". For our part, we doubt it is helpful to paraphrase or illustrate the words of the statute. We would rather just apply the plain words to the facts we have identified.[37] [2011] AATA 330 at [17].