Comcare v Eames

Case [2008] FCA 422

FEDERAL COURT OF AUSTRALIA

Comcare v Eames [2008] FCA 422

ADMINISTRATIVE LAW – administrative tribunals – Administrative Appeals Tribunal (Cth) – appeals to Federal Court – questions of law – whether question as to whether procedural fairness afforded is a question of law

WORKERS’ COMPENSATION – entitlement to compensation – exclusions –“meaning of reasonable disciplinary action” by employer

Held:  (1)  question of whether procedural fairness was afforded in disciplinary action by a departmental inquisitor is a question of law;
(2)  there had been a denial by the inquisitor of procedural fairness;
(3)  AAT erred in understanding when “disciplinary action” had commenced;
(4)  the errors of law could not have affected the actual result reached by the Tribunal.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 cited
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
Bridges v Minister for Immigration and Multicultural Affairs (2001) 67 ALD 306 followed
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 applied
Schmid v Comcare (2003) 77 ALD 782 cited
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited

COMCARE v REBECCA EAMES
ACD 1 OF 2007

MADGWICK J
1 APRIL 2008
SYDNEY (HEARD IN CANBERRA)


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 1 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY JW CONSTANCE, SENIOR MEMBER

BETWEEN:

COMCARE
Applicant

AND:

REBECCA EAMES
Respondent

JUDGE:

MADGWICK J

DATE OF ORDER:

1 APRIL 2008

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 1 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY JW CONSTANCE, SENIOR MEMBER

BETWEEN:

COMCARE
Applicant

AND:

REBECCA EAMES
Respondent

JUDGE:

MADGWICK J

DATE:

1 APRIL 2008

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

HIS HONOUR

  1. This is an appeal on a point of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (the Tribunal) adverse to the applicant. The Senior Member set aside a decision of Comcare (which had affirmed an earlier decision) to deny liability for the respondent’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an anxiety state condition.

    Background

  2. At the relevant time, the respondent had been employed by the Department of the Senate (the Department) for about six years.  A new fellow employee, Ms Slattery, joined the section in which Ms Eames worked.  The relationship between the two deteriorated.  The respondent asked her immediate supervisor to take steps…

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Details
AGLC
Comcare v Eames [2008] FCA 422
Case
[2008] FCA 422
Decision Date

CaseChat Overview and Summary

Comcare appealed a decision of the Administrative Appeals Tribunal that found the respondent, Ms Eames, was entitled to compensation for an anxiety state condition under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The appeal was brought on a point of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal had found that Ms Eames suffered an ailment or an aggravation of an ailment, contributed to in a material degree by her employment, but that this was not as a result of reasonable disciplinary action taken against her. The Tribunal had ordered Comcare to pay compensation to Ms Eames. The primary issue for the court was whether the Tribunal had correctly interpreted the meaning of "reasonable disciplinary action" under the Act. The court found that the Tribunal had misapplied the definition of "reasonable disciplinary action" by not considering that disciplinary action had begun from 1 December 2004 when Ms Eames was provided with the allegations made against her. The court held that an investigation into whether there had been a breach of the Code of Conduct was "action lawfully taken against an employee in the nature of or to promote discipline". However, even though the Tribunal had erred in its interpretation of the law, the actual decision may not have been affected by it. The court dismissed the appeal and ordered that the applicant pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of the appeal.

Background

Background to the litigation

This is an appeal on a point of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (the Tribunal) adverse to the applicant. The Senior Member set aside a decision of Comcare (which had affirmed an earlier decision) to deny liability for the respondent’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an anxiety state condition.Background At the relevant time, the respondent had been employed by the Department of the Senate (the Department) for about six years. A new fellow employee, Ms Slattery, joined the section in which Ms Eames worked. The relationship between the two deteriorated. The respondent asked her immediate supervisor to take steps to have the differences resolved. Nothing was done. On Friday 12 November 2004 there was an altercation between her and Ms Slattery, which ended with the respondent becoming very upset and telling Ms Slattery that she was “a fucking pest”. On the same day, the respondent discussed this incident with the Clerk Assistant (Procedural), Mr Elliot. She told him that the affair had caused her to suffer a panic attack (to which she said she was prone). On Monday 15 November the respondent told Mr Elliot that she intended to resign and apply for another position, as a result of Friday’s events, and asked that Mr Elliott act as a referee. Mr Elliot told her he would not give her a reference until she apologised to Ms Slattery. The respondent protested, referring to the history of disharmony and management inaction. The respondent was outraged and upset by Mr Elliot’s attitude. She said she would apologise for using the swear word. Immediately after this meeting the respondent said to Ms Slattery that she had to apologise to her, and that she was sorry for using the word “fucking” but that she, Ms Slattery, was still a pest. The next day the respondent consulted her medical practitioner, Dr Wessell. According to that doctor, she “showed evidence of great emotional distress”. On 1 December 2004 Mr Curtis, an officer of the Department, was appointed by the Usher of the Black Rod, Ms Griffiths, to investigate possible breaches by the respondent of the Parliamentary Service Code of Conduct. The respondent was informed on that day that “[t]he possible breaches relate to two alleged incidents (12 and 15 November 2004) of abusive language and threatening behaviour toward a departmental staff member, Ms Loes Slattery”. By email of 3 December, the respondent requested that Mr Curtis provide her with a copy of the allegations made against her. Mr Curtis replied, saying among other things: “Prior to having any formal discussion with you, I will make sure that you have all the relevant evidence”. On 7 December Mr Curtis interviewed the respondent in relation to the allegations. She had not been provided with the evidence he had before him, which included statements of witnesses, among them Ms Slattery.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J
At the relevant time, s 4 defined “injury” as (a) a disease suffered by an employee;…but does not include any such disease … suffered by an employee as a result of reasonable disciplinary action taken against the employee…The definition of “disease” was(a) any ailment suffered by an employee; or(b) the aggravation of any such ailment;being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.The Tribunal’s decision The primary issue to be decided by the Tribunal was whether the respondent suffered an injury such as to entitle her to compensation in accordance with the Act. In order to decide this issue, the Tribunal identified and determined two subsidiary issues: firstly, had the respondent suffered an ailment or an aggravation of an ailment, contributed to in a material degree by her employment? Secondly, if she had so suffered, was this as a result of reasonable disciplinary action taken against her? The Senior Member issued a formal decision record as well as his “Reasons for Decision”. In the decision record he said:… it is decided that:(a) Comcare is liable to pay compensation to Ms Eames in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury of an anxiety state or alternatively, the injury of the aggravation of an anxiety state, suffered by her on 14 November 2004; In his reasons for decision the Senior Member said:34.I am satisfied on the balance of probabilities that Ms Eames suffered an ailment within the meaning of the Act. Alternatively, I am satisfied that Ms Eames suffered an aggravation of a pre-existing ailment, being an exacerbation of her anxiety. I make this finding on the basis of the evidence of Dr Wessell … It has not been argued that if Ms Eames suffered an ailment such as I have found, that the ailment was not contributed to in a material degree by her employment by the Department of the Senate and I find accordingly. I am satisfied therefore that Ms Eames has suffered a disease within the meaning of the Act.35.On the basis of the evidence of Dr Wessell, I am satisfied on the balance of probabilities that Ms Eames suffered the disease on 14 November 2004 and that she continued to suffer the effects of that disease until April 2005 when she commenced her new employment. I am not satisfied that Ms Eames has suffered from the effects of the disease from April 2005 until the date of this decision. The Senior Member then went on to consider the question: “Was the disease suffered by Ms Eames suffered as a result of reasonable disciplinary action against her?” He found that there was no disciplinary action against the respondent and, if there was, it was not reasonable disciplinary action. In deciding the first point the Senior Member relied on the following passage from Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall [1992] FCA 535; (1992) 37 FCR 75 at 83-4:In the context of the definition of “injury” in s 4(1) of the Act, the phrase “disciplinary action” means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. … What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition. … Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of “disciplinary action” in the Act.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

If procedural fairness is an issue, the respondent relies on an “overwhelming” amount of evidence to demonstrate that the process did not afford procedural fairness, including:·evidence from Mr Curtis of the process he used, including his concession that technically the respondent was not afforded procedural fairness;·Ms Griffiths’ evidence about the denial of procedural fairness to the respondent; and·The evidence about the reason for the commencement of the process in question, including the oral evidence of the respondent, Mr Elliot and Ms Gordon.Consideration I agree with the parties that Chenhall 37 FCR 75 correctly and helpfully discusses the law as to what is necessary to constitute “disciplinary action”. Whether particular conduct amounts to “reasonable disciplinary action” has previously been treated as a question of law: Chenhall 37 FCR 75; Schmid v Comcare [2003] FCA 1057; (2003) 77 ALD 782, [84]. The question is: at what point in the regulatory regime in the present case did disciplinary action begin? This requires an analysis of that regime. It appears that the learned Senior Member did misapply the definition of “reasonable disciplinary action”, in that he did not consider disciplinary action within the meaning of the Act to have occurred at all in the present case. I accept that disciplinary action had begun from 1 December 2004, when the respondent was provided with the allegations made against her. What is described within the Procedures as an “investigation” is, when viewed in the context of the Parliamentary Services Commissioner’s Direction 2000/1 (the basis of the Procedures, in accordance with s 15 of the Parliamentary Service Act 1999 (Cth)), actually a determination of whether there has been a breach of the Code of Conduct. This is clearly “action lawfully taken against an employee in the nature of or to promote discipline”: Chenhall 37 FCR at 83. Cooper J explicitly (and in my respectful opinion, correctly) rejected the proposition that disciplinary action refers only to the actual imposition of a sanction: Chenhall 37 FCR at 85. The Tribunal appears to have misconstrued Chenhall 37 FCR 75 in this respect: at [39] it said “[t]aking into account the Senate’s own procedures it is clear that the process did not go beyond an investigation and reporting of findings to the Usher of the Black Rod and the disciplinary action envisaged by the Procedures document did not take place”. That is to conflate the entire process of disciplinary action and its ultimate outcome. Had the allegations not been sustained, the action of investigating them for the direct purpose of determining whether any sanction should be applied would nevertheless have been “disciplinary” action. Notwithstanding this error, it needs to be shown that the actual decision may have been affected by it: the “appeal” is from the decision not from the reasons given in support of it. By design or otherwise, reasons for decision given by decision-makers of all kinds frequently include expressions of opinion on material discussed in the case at hand that are unnecessary for the actual decision; in particular, appellate or reviewing decision-makers often intend, in that way, to be helpful to primary decision-makers. Tribunals giving opinions which are, logically, gratuitous do not always understand that, in terms of doing only what is necessary, an opinion expressed may have that character. Even where this is understood, a busy tribunal member may omit an explanation for undertaking the excursus. Frequently, judges (even at the highest levels) discuss unnecessary material and, often enough, without expressly flagging their understanding that they are doing so. At least an equal degree of understanding of the process of writing reasons for decision can and should properly be extended to administrative tribunals. The eye too keenly attuned to unduly strained inference needs some detuning.