Chant and Comcare
[2008] AATA 77
•30 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 77
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2006/1620
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL CHANT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr J Campbell, MemberDate30 January 2008
PlaceSydney
Decision We set aside the decision under review and instead decide that Comcare is liable to pay compensation in respect of the injury. ..................[Sgd]....................
Ms N Bell Senior Member
COMPENSATION – Acute Reaction to Stress – Normal reaction to Stress – Compensable Psychiatric Injury – Outside the Boundaries of Normal Mental Functioning and Behaviour – Decision Under Review is Set Aside – Costs at 75% of the Federal Court Scale
Safety Rehabilitation and Compensation Act 1988
Re Maley and Comcare A [1998] AATA 543
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr J Campbell, Member1.Michael Chant has worked with the Australian Taxation Office in Penrith since 2000. In 2004 he was employed as a Team Leader at the Penrith Call Centre. In that year and in 2005, Mr Chant supervised, among other people, a team member whose amount of sick leave caused the Call Centre Manager to request Mr Chant to “performance manage” that team member.
2.In the course of this performance management, the team member alleged Mr Chant had victimised him and made a formal complaint about Mr Chant in January 2006. Mr Chant was advised of the complaint in March 2006. On 22 March Mr Chant lodged a claim for compensation for “acute reaction to stress”. Comcare rejected the claim on 17 August 2006 and affirmed that decision on 16 November 2006.
issues
3.Comcare maintains that Mr Chant suffered no more than a normal reaction to stress and not a compensable psychiatric injury – not a condition that is “outside the boundaries of normal mental functioning and behaviour (Comcare v Mooi[1]).
[1] (1996) 69 FCR 439
4.It also contends that Mr Chant had been unsuccessfully seeking a transfer from the Penrith office and that, even if he did suffer a psychiatric injury, his failure to obtain a transfer excludes him from the definition of “injury” by the operation of section 4 (as it then was) of the Safety Rehabilitation and Compensation Act 1988.
5.Comcare also contends that the exclusion is also activated by the investigation into the allegations of victimisation, which amount to “disciplinary proceedings” within the meaning of section 4. Comcare abandoned this contention at the beginning of the hearing.
6.Consequently there are two issues for us to consider:
(a)whether Mr Chant suffered a psychiatric injury; and
(b)if so, whether his injury resulted from a failure to obtain a transfer and is therefore, under the Act, not an injury.
7.We also note the application made by Mr Chant for costs at 100% of the Federal Court scale, should he be successful in his substantive application.
did mr chant suffer a psychiatric injury?
8.Mr Chant’s evidence was that when one individual became a member of his team in September 2004 he found his leave record and productivity were cause for concern. He said that by mid 2005 the team member was under performance management which meant Mr Chant had to track his leave to ensure it was documented and his undocumented leave limited. This became such an issue, the team member had to have a fitness for duty assessment. The team member was found, after an “IT sweep” done by the Call Centre Manager, to have sent over 500 external e-mails in one month. After this, the Call Centre Manager gave Mr Chant formal directions to assess the team member’s performance daily and speak with him if he was not adhering to protocols and to give the Call Centre Manager fortnightly reports on his performance.
9.While on leave in December 2005, Mr Chant’s manager told him by telephone, that he was to be moved to another team. The reason he was given was that another team needed an experienced team leader. Mr Chant said he asked if the manager would wait until his return from leave before the change was effected and the manager said he would discuss it with the Call Centre Manager. Mr Chant returned to work in mid January 2006, worked the rest of the month with his old team and then moved to the new team.
10.In the meantime he had called the team member at his home to inquire about some carer’s leave he had taken. He said he did this at his manager’s request. The team member objected to being contacted at home and complained. Mr Chant said he thought this was a “storm in a teacup” and asked his manager to have someone else deal with the complaint.
11.Mr Chant said that when he went to the new team there were some people who needed close monitoring and some members of the team seemed “aware of things”. He said they made comments such as ”you’ll get more out of us with sugar”. These comments continued until March and he raised them with his managers who, he said, dismissed them.
12.Mr Chant said he felt disturbed and undermined and was becoming depressed, anxious, having tearful meetings with his managers and not coping.
13.Mr Chant said that on 14 March 2006 he received an e-mail from a complaint investigator advising him of a formal complaint made about him by his former team member. The investigator described the complaint as wide ranging and said she would send Mr Chant her submission. The complaint documents included statements from members of Mr Chant’s current team.
14.Mr Chant said he was horrified. He felt angry, depressed, paranoid, set up, goaded, his memory and concentration were poor and he felt ineffective as a manager. When he had a meeting with the investigator she told him it was just an administrative process, not to worry and that he had not been advised of the complaint earlier because confidentiality had to be maintained.
15.Mr Chant said that between 14 and 17 March 2006 he had great difficulty coping and tried to see the Call Centre Manager on the 17th. Being unable to do so, he sent her an e-mail saying he was not coping. She responded by saying she had accelerated a request he had made for a transfer. Mr Chant said she asked whether he had considered working outside the agency. Mr Chant said he took this as a request that he leave.
16.Mr Chant said he had difficulty breathing, felt hostile, angry, anxious, could not concentrate or focus, had palpitations, chest pain and was extremely stressed. He said he felt “not normal” and needed to see a doctor. He went to see his General Practitioner, Dr Kitson who gave him time off, offered him medication (which he did not accept) and referred him to Professor Kennett, Psychologist, whom Mr Chant saw three days later. He saw Professor Kennett on a further two occasions before he returned to work on about 3 April. He said he returned at that time because he was worried about his mortgage and had run out of leave.
17.He returned to the same team and after a short time was transferred to Parramatta. He said this made a great difference because he was away from the environment in which he had felt so stressed. He said he has had no recurrence of problems.
18.Professor Kennett, in his report of 22 May 2006, diagnosed chronic adjustment disorder with mixed anxiety and depressed mood. He provided the results of the Personality Assessment Inventory he administered to Mr Chant. In a further report, dated 13 June 2007, he confirmed this diagnosis and the validity of the Inventory results.
19.Professor Kennett’s evidence was that Mr Chant suffered a chronic adjustment disorder from as early as 18 November 2005 when he began to react abnormally to his team member and the stressors he was creating, obsessing and creating “masses of e-mails”. He said Mr Chant became progressively worse until his distress was in excess of a normal reaction. He said when he saw Mr Chant he was in a terrible state – in substantial psychological distress.
20.During concurrent evidence with Dr Skinner, Psychiatrist, Professor Kennett modified his diagnosis to acute adjustment disorder. He confirmed that Mr Chant had not given him a history of heart palpitations or chest pain.
21.Dr Skinner, in her report of 21 May 2007, said she had not seen or examined Mr Chant and simply read the documents provided to her by Comcare. She considered that Mr Chant had merely experienced a normal reaction to stressful events. She cast doubt on the validity of the Inventory administered by Professor Kennett and noted that it indicated an individual with a highly disturbed personality who may present a risk to others in the workplace. She said that if Mr Chant has now settled well into the workplace after his transfer then the results of the test are unreliable.
22.Dr Skinner’s evidence was that, in her view, Mr Chant was still coping as at 17 March 2006 and although he might have had acute anxiety, it did not amount to a psychiatric disorder. She suggested he might have had a panic attack. She also doubted the results of the test administered by Professor Kennett because it was administered at a time of acute stress.
23.Dr Skinner said she maintains the view expressed in her report, on the basis of the papers she had at that time. However, in concurrent evidence with Professor Kennett, she conceded that, on the basis of the history given to the Tribunal, from 17 March 2006, and for the following fourteen days, his response was outside the normal range of functioning and behaviour. She said this was especially so if Mr Chant felt he could not work.
24.We accept Mr Chant’s evidence as to his reaction to the formal complaint and his concerns that preceded it. We find it feasible and probable that his suspicions were aroused by staff comment and that he was particularly distressed when he learned that months later an investigation had been on foot. On that basis, and on the basis of the agreement of the expert witnesses in concurrent evidence that his reaction as described in his evidence was beyond normal functioning and behaviour, we find that he suffered a psychiatric injury.
does the “failure to obtain a transfer” exclusion operate?
25.Section 4 (as it was prior to amendments in 2007) provides the definition of “injury” as follows:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) …
But does not include any such disease, in jury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;”
26.Mr Chant’s evidence was that he had been living in the Blue Mountains and commuting to Penrith. He said he had parents who were unwell and he needed to move to Sydney to be closer to them. He said that when he moved to Sydney the commute to Penrith was easier anyway. He said he had placed his name on a register of those interested in transfers and the Call Centre Manager was supportive.
27.Mr Chant said he made his first application for a transfer in February 2005. There had been an issue, since October 2003, about his inability to do early shifts because of the train timetable from the Blue Mountains to Penrith. He said the commuting aspect was resolved when he moved to Sydney. However, he conceded that he still declined to do early shifts after his move to Sydney. He said he reached an arrangement with the Call Centre Manager that he would work later instead. We note from e-mails passing between Mr Chant and the Call Centre Manager that he was still pursuing a transfer in the week before he learned of the investigation. We also note that the Call Centre Manager appears to have been supportive of his requests for a transfer and provided him with some assistance in this regard. It is also notable that on 17 March 2006, when things appear to have reached a head for Mr Chant, he suggested in an e-mail to the Call Centre Manager that his mobility request be accelerated, given the seriousness and consequences of the investigation. Her response was positive and she said she would pursue a transfer for him.
28.Comcare submitted that Mr Chant made his claim because he had failed to obtain a transfer. It referred us to a series of e-mails that showed Mr Chant was unsuccessful in an application for a position and received news of that on 9 March 2006. The e-mails also show that on 9 December 2005 Mr Chant refused a request that he work early shifts.
29.We are mindful that Mr Chant, although aware of an incident report, did not learn of the formal complaint made against him until 14 March 2006. This post dates his failure to obtain a transfer on 9 March. Mr Chant’s Call Centre Manager appears to have been helpful to him in his efforts to obtain a transfer and accommodating of his refusal to work early shifts. It is interesting that Mr Chant asked for his mobility application to be accelerated on 17 March 2006 but we consider there is a distinction between a material cause of an injury and a possible alleviant of it. We consider that the prospect of a transfer was, for Mr Chant, the latter. His longstanding desire for a transfer continued, but his injury was not the result of his failure to obtain one.
30.For these reasons, we conclude that the provisions of section 4 do not operate to exclude Mr Chant’s psychiatric condition from the definition of “injury”.
decision
31.It follows that we find that Mr Chant suffered a psychiatric injury arising out of his work. On this basis we set aside the decision under review and instead decide that Comcare is liable to pay compensation in respect of the injury.
costs
32.Generally, costs are awarded at 75% of the Federal Court scale. Mr Chant has submitted that, in his case, they should be awarded at the full Federal Court scale. The basis of this submission is that the amount involved was trifling and simply a re-crediting of leave; the medical opinion relied on by Comcare was from a psychiatrist who had never examined or spoken to Mr Chant; Comcare’s case was run from the outset on the basis that Mr Chant had been subject to disciplinary action – an argument that was abandoned on the day of the hearing; and for these reasons the application should never have reached hearing.
33.The Tribunal, in Re Maley and Comcare[2] awarded costs at 100% of the scale because the Respondent had made a decision to reject the relevant claim without having regard to the rules relevant to the payment sought and without investigating the facts relevant to the payment. A letter in the nature of a Calderbank letter had been written by the Applicant and there had been a directions hearing in the matter that would have been unnecessary had the Respondent provided an informative response to a request for particulars from the Applicant.
[2] A [1998] AATA 543
34.In this case, there was no Calderbank letter; no withholding of information; no failure to have regard to the relevant legislation or rules. The abandonment of an argument that cannot be sustained is not a practice to be discouraged by the imposition of a costs penalty, although we do encourage the more timely assessment of cases by respondents. If a party to an application chooses to rely on evidence obtained in circumstances that lead the Tribunal to give the evidence less weight than it otherwise would, then that is a matter that will influence the outcome of the case. It is not necessarily a ground for increased costs.
35.It is disappointing that this case, involving the small amount of compensation claimed, was not resolved prior to hearing. We note that the parties did not attempt conciliation. Perhaps the matter would not have proceeded to hearing if they had. The chances of resolution prior to hearing would certainly have been greater if a conciliation conference had taken place.
36.We do not consider it appropriate, in this case, to award costs at 100% of the Federal Court scale. However, we encourage the respondent to take advantage of the service offered by the Tribunal and to maintain its usual preparedness to participate in conciliation conferences. At the very least, that process allows the parties to better assess their respective cases in advance of the hearing.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr J Campbell, Member.
Signed: ........... [ Sanjiv Shah ]..............
AssociateDates of Hearing 10 December 2007
11 December 2007
Date of Decision 30 January 2008
Counsel for the Applicant Leo Grey
Solicitor for the Applicant Tony Mannah
Counsel for the Respondent Brendan Kelly
Solicitor for the Respondent Cameron Hutchins
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