Cawthorne and Comcare (Compensation)

Case [2016] AATA 285

Cawthorne and Comcare (Compensation) [2016] AATA 285 (4 May 2016)

Division

General Division

File Number(s)

2015/1091

Re

Donald Cawthorne

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Ms N Isenberg, Senior Member
Date 4 May 2016
Place Sydney

The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – whether Applicant suffered disease –whether Applicant suffered injury – adjustment reaction with anxious mood – workplace harassment and bullying – reasonable administrative action –  whether counselling action reasonable administrative action – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 7, 14

CASES

Comcare v Martinez (No 2) [2013] FCA 439

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Martin v Comcare [2015] FCAFC 169

REASONS FOR DECISION

Ms N Isenberg, Senior Member

4 May 2016

NATURE OF THE APPLICATION

  1. This application relates to a claim for acceptance of liability to pay compensation for an "injury" under s 14 of the Safety, Rehabilitation and Compensation Act 1988 ("SRC Act"). The Applicant made a claim dated 11 September 2014 for "work related anxiety & depression". On 10 November 2014, the Respondent issued a Determination denying liability for a condition described as "adjustment reaction with anxious mood" on the basis that the claim fell within the exclusionary provisions of s 5A of the SRC Act. That determination was affirmed on reconsideration. The Applicant now seeks review by this Tribunal.

    ISSUES

  2. Whether the Applicant suffered an ailment or the aggravation of an ailment that was contributed to, to a significant degree by his employment, such that it comes within the definition of 'disease' in s 5B of the SRC Act?

  3. If the Applicant suffered from a disease, whether that disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant's employment for the purposes of the definition of 'injury' in s 5A of the SRC Act?

  4. If the Applicant suffered from an injury, does that injury create a liability for Comcare to pay compensation under s 14 of the SRC Act?

    BACKGROUND        

  5. In early 2005 the Applicant commenced employment with the Department of Foreign Affairs and Trade (DFAT) in the Sydney Passport Office. 

  6. From reasonably early in his career there the Applicant had a number of disagreements or misunderstandings with other officers, which he regarded as bullying or harassment.  From 2011 he was the recipient of explicit emails and allegations of homosexuality.  There was a disagreement with GM.  On 4 September 2014 the Applicant had a telephone conversation with Ms Moores, Assistant Secretary – Passport Business Improvement and Integrity Branch.  Following that conversation, the Applicant, after a time, left work and the next day consulted a general practitioner, Dr Sara Guirgis who diagnosed him as suffering from anxiety and depression. 

  7. The Respondent conceded that the Applicant suffered from an adjustment disorder with anxious mood, but that the resultant incapacity for work was only from 4 September 2014, and no earlier.…

Continue reading Cawthorne and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Cawthorne and Comcare (Compensation) [2016] AATA 285
Case
[2016] AATA 285
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Mr Cawthorne, for compensation from Comcare under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The Applicant alleged he suffered an adjustment disorder with anxious mood as a result of workplace harassment and bullying. Comcare conceded the Applicant suffered from the condition but contended that his incapacity for work only commenced on 4 September 2014, and that the conversation he had with Ms Moores on that date constituted reasonable administrative action taken in a reasonable manner in respect of his employment, thereby excluding the condition from the definition of "injury" under the SRC Act.

The primary legal issues before the Tribunal were whether the Applicant suffered an "injury" as defined by the SRC Act, and if so, whether that injury created a liability for Comcare to pay compensation. Specifically, the Tribunal was required to determine if the Applicant's adjustment disorder with anxious mood arose out of, or in the course of, his employment, and crucially, whether it was suffered as a result of reasonable administrative action taken in a reasonable manner, which would exclude it from compensation. The Tribunal also had to determine the deemed date of injury, considering when the Applicant first sought medical treatment or when the condition first resulted in incapacity for work or impairment.

The Tribunal found that the Applicant's interaction with Ms Moores on 4 September 2014 was the precipitating event for his incapacity for work. Applying the principles from *Hart v Comcare* and *Commonwealth Bank of Australia v Reeve*, the Tribunal held that if any cause of an injury falls within the exclusion of reasonable administrative action, the employee is disentitled to compensation. The Tribunal concluded that the telephone conversation with Ms Moores was reasonable administrative action taken in a reasonable manner in respect of the Applicant's employment. Consequently, the Applicant's condition was excluded from the definition of "injury" under section 5A of the SRC Act.

Accordingly, the Tribunal affirmed the decision under review, finding that Comcare was not liable to pay compensation to the Applicant under section 14 of the SRC Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

If the Applicant suffered from an injury, does that injury create a liability for Comcare to pay compensation under s 14 of the SRC Act?BACKGROUND In early 2005 the Applicant commenced employment with the Department of Foreign Affairs and Trade (DFAT) in the Sydney Passport Office. From reasonably early in his career there the Applicant had a number of disagreements or misunderstandings with other officers, which he regarded as bullying or harassment. From 2011 he was the recipient of explicit emails and allegations of homosexuality. There was a disagreement with GM. On 4 September 2014 the Applicant had a telephone conversation with Ms Moores, Assistant Secretary – Passport Business Improvement and Integrity Branch. Following that conversation, the Applicant, after a time, left work and the next day consulted a general practitioner, Dr Sara Guirgis who diagnosed him as suffering from anxiety and depression. The Respondent conceded that the Applicant suffered from an adjustment disorder with anxious mood, but that the resultant incapacity for work was only from 4 September 2014, and no earlier. The Respondent further contended that the conversation with Ms Moores was counselling and, as such, was reasonable administrative action, taken in a reasonable manner in respect of the Applicant's employment. In the alternative, the Respondent submitted, the actions of Ms Moores on 4 September 2014 were actions done in connection with reasonable counselling action, and, as a result, the disease suffered by the Applicant was suffered as a result of the reasonable administrative action of the employer, reasonably undertaken in respect of the Applicant's employment. RELEVANT LEGISLATION In subsection 5A(1) injury is defined 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. Relevantly, s 5A(2) provides that for the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment and anything reasonably done in connection with such an action. Section 7(4) of the SRC Act deems the date of injury to be when the employee first sought medical treatment or the condition first resulted in incapacity for work or impairment of the employee.THE EVIDENCE The parties agreed that the Applicant’s interaction with Ms Moores on 4 September 2014 was the crux of the matter.

Evidence

Evidence Before The Court

Section 7(4) of the SRC Act deems the date of injury to be when the employee first sought medical treatment or the condition first resulted in incapacity for work or impairment of the employee.THE EVIDENCE The parties agreed that the Applicant’s interaction with Ms Moores on 4 September 2014 was the crux of the matter. Nonetheless, it is useful to set out in summary form the Applicant’s general complaints about the work environment. These provide some context to the events of 4 September 2014, and are largely undisputed. The Applicant had a heavy work load and, in 2011 he received the assistance of another officer – RB. From that time onwards, the Applicant received emails circulated by TB of an explicit nature, including alleging he was in a homosexual relationship with RB. The Applicant described the emails as “disgusting” and was deeply offended by the allegations. He made no complaint. In November 2011, the Applicant and others attended a dinner of the "5 Nations Anti-Fraud" group (“the 5 Nations meeting”). A few days later the Applicant and others received an email from TB regarding “name calling and personal attacks” with respect to SB. The Applicant said SB told him that he had been told by another DFAT officer, KE, that the Applicant made offensive remarks about him (SB) and that other staff had complained to TB. Shortly after, the Applicant sent an email to all staff who had been sent TB’s email, denying that he had made offensive remarks, even though he does not appear to have been named in TB’s email. On Friday 2 August 2013, the Applicant received an email from GM requesting that he arrange meetings with stakeholders for the following Wednesday. A short time later, the Applicant replied seeking to postpone the meeting until the following week because the Monday was a public holiday and he was approved to take “time off in lieu” on the Tuesday, and it was also short notice to arrange a meeting with all the stakeholders. GM told him that the week after was no good for him. The Applicant replied that he would make some calls and check. There appears to have been a telephone call in which the Applicant again sought to postpone the meeting.GM replied to the Applicant to the effect that it was his perception that the Applicant could not be bothered to organize the meetings.The Applicant reported this incident to TB and advised that he felt "bullied", and emailed GM that he did not appreciate the insinuation that he could not be bothered. In early to mid-2014, the Applicant had conversations with GM in which he, GM, was said to have been critical of the Applicant for “replying to a letter addressed to the Assistant Secretary”. On 17 June 2014, GM sent an email to a number of staff advising the procedure to follow in two circumstances, one of which was if a letter is received which is addressed to an APO Executive. Following this, the Applicant emailed GM advising he did in fact "forward the letter to the Director, who at the time was the Acting (Assistant Secretary)". GM emailed the Applicant that he should “get over it” and that what he had sent around was a reminder to everyone and didn't single the Applicant out. The Applicant then emailed TB advising that he considered GM’s treatment of him was "harassment and bullying". When TB informed the Applicant by email of 18 June 2014 that, based on the email, he did not consider GM’s conduct to constitute bullying, the Applicant forwarded the email exchange to Ms Moores.

Decision

Reasons for decision

I have found that the telephone conversation between the Applicant and Ms Moores was a reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment. Accordingly, the Applicant’s condition is excluded from the definition of “injury” in s 5A of the SRC Act. Consequently, Comcare is not liable to pay compensation in accordance with s14 of the SRC Act.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Applicant said, for example, that an attendance at his GP in August 2013 recorded as “viral infection”, was as a result of his dealings with GM. The Applicant could not recall the attendance, and thought the summonsed medical records from his usual GP may have even related to his son (also named Donald). CONSIDERATION The Respondent conceded that the Applicant suffered from an adjustment disorder with anxious mood. However, it contended that the resultant incapacity for work was only from 4 September 2014, and no earlier. The Applicant said that he had undertaken EAP counselling on 23 June 2014. He told Ms Moores that the counsellor had said he had a “health issue” caused by work-related issues, but there was no other evidence about the counselling, in particular, whether the counsellor provided “medical treatment” as defined or whether there was, at that time, any incapacity for work: s 7(4) of the SRC Act. Further, I reject his contention that he had previously visited the doctor with symptoms which although described otherwise, were related to workplace issues. There was no contemporaneous medical evidence that might support this contention. However, there was clear evidence that the Applicant first sought medical treatment on 5 September 2014, that is, the day after his discussion with Ms Moores, after which he left work, and has never returned to fulltime work. Furthermore, the evidence was that this was the first occasion, on the evidence, when his psychological condition resulted in incapacity for work or impairment. Associate Professor Robertson recorded that the Applicant first sought treatment in August/September 2013. This is clearly incorrect, and even the Applicant does not make this claim. Associate Professor Robertson also considered the Applicant first experienced incapacity for employment after the problems emerging in August and September 2013. But, it seemed to me, in his supplementary report, he resiled from this, describing the events of 4 September 2014 as “precipitant” to the Applicant’s ceasing work. Dr Joanna Guirgis, consultant psychiatrist, recorded that Mr Cawthorne described that the workplace events “reached a peak” on 4 September 2014, and this is consistent with the present view of Associate Professor Robertson. Dr Synnott, on the other hand recorded that it would appear the Applicant’s symptoms first became significant on 2 August 2013, but, it is clear that this was on the basis of the Applicant’s self-report. Consequently, I find that 4 September 2014 is the deemed date of injury as that was when the Applicant’s psychological condition first resulted in his incapacity for work. He first sought medical treatment for the condition on 5 September 2014.The ‘precipitant’ events of 4 September 2014 In Commonwealth Bank of Australia v Reeve[2012] FCAFC 21 Gray J, discussed the operation of s 5A of the SRC Act: In this respect, it is necessary to bear in mind the principle that is taken to have been established by Hart v Comcare [2005] FCAFC 16 (2005) 87 ALD 341 at [21]- [23]. That principle is that, however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury.