Constantinou and Comcare (Compensation)

Case [2022] AATA 2380

Constantinou and Comcare (Compensation) [2022] AATA 2380 (26 July 2022)

Division:GENERAL DIVISION

File Number(s):      2018/7631

Re:Constantinou

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms Anna E Burke AO, Member

Date:26 July 2022

Place:Melbourne

The Tribunal, having considered all the evidence before it, determines that the Applicant is excluded from any form of compensation under the Safety, Rehabilitation and Compensation Act 1988 as the action of revoking his deployment was a reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2) of that Act.

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

Ms Anna E Burke AO, Member

Catchwords

COMPENSATION – accepted psychological ailment contributed to a significant degree by employment – whether reasonable administrative action exclusion applies – condition arose from reasonable administrative action undertaken reasonably – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Woodhouse v Comcare (2021) 285 FCR 14
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Mooi (1996) 69 FCR 439
Comcare v Martin (2016) 258 CLR 467
Comcare v Stewart [2019] FCA 365
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
O'Callaghan and Comcare (Compensation) [2019] AATA 4378
Su and Comcare [2011] AATA 934
Comcare v Power (2015) 238 FCR 187
Bryant and National Australia Bank Limited (Compensation) [2021] AATA 2769
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463

REASONS FOR DECISION

Ms Anna E Burke AO Member

26 July 2022

  1. The Applicant, Mr Constantiou, applied for review of a decision by the Comcare Review Officer dated 30 October 2018 which denied liability for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). This determination accepted that Mr Constantiou suffered from a psychological ailment which was contributed to, to a significant degree, by his employment with the Australian Federal Police (AFP). However, the review officer found Mr Constantiou was excluded from any entitlements as his ailment was caused by reasonable administrative action.

  2. On 21 December 2018 Mr Constantinou sought review of that decision by the General Division of the Administrative Appeals Tribunal, submitting the decision was wrong at law and against the weight of the evidence.

    BACKGROUND

  3. Mr Constantinou is a current serving sworn AFP officer, holding the rank of Detective. Mr Constantinou joined the AFP in 2002, following completion of tertiary studies and employment in various other full-time roles. In August 2016, Mr Constantinou was deployed to Papua New Guinea (PNG) as a member of the AFP’s International Deployment Group, initially stationed at the Port Moresby International Airport for a period of 12 months. Mr Constantinou was deployed as a Security Advisor (aviation expert) to the Royal Papua New Guinea Constabulary (RPNGC). Originally the critical object of this role was to create and maintain a constructive and coordinated working environment with the RPNGC, non-RPNGC stakeholders and community through relationship building and in accordance with the Police Partnership Plan. This progressed to providing targeted capacity development activities, agreed with the RPNGC, to ensure delivery of a…

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AGLC
Constantinou and Comcare (Compensation) [2022] AATA 2380
Case
[2022] AATA 2380
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a claim for compensation by Mr Constantinou against Comcare. Mr Constantinou, an Australian Federal Police (AFP) officer, sought compensation for a psychological stress injury, which he alleged arose from workplace bullying, discriminatory behaviour, and assault during his deployment to Papua New Guinea. Comcare had rejected his claim, asserting that the condition arose from reasonable administrative action taken in a reasonable manner.

The Tribunal was required to determine two key legal issues. First, whether Mr Constantinou suffered from a "disease" for the purposes of the relevant legislation. Second, if a disease was established, whether it was a result of reasonable administrative action taken in a reasonable manner in respect of his employment, which would trigger an exclusionary provision and prevent compensation.

The Tribunal found that there was no dispute that Mr Constantinou suffered from a condition outside the boundaries of normal mental functioning and behaviour, and that his employment with the AFP was a significant contributing factor. However, the dispute centred on the onset of the condition and its cause. Mr Constantinou argued his condition stemmed from various bullying events and the incident with his supervisor, Mr Murphy, and the subsequent handling of his complaints. Comcare contended that his symptoms manifested after the revocation of his deployment to PNG in May 2018, which they argued constituted reasonable administrative action taken reasonably. The Tribunal ultimately determined that the action of revoking Mr Constantinou's deployment was reasonable administrative action taken in a reasonable manner, thereby excluding his claim for compensation under section 5A(2) of the Act.

Consequently, the Tribunal affirmed the decision of 30 October 2018 to reject Mr Constantinou's claim for compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 21 December 2018 Mr Constantinou sought review of that decision by the General Division of the Administrative Appeals Tribunal, submitting the decision was wrong at law and against the weight of the evidence. BACKGROUND Mr Constantinou is a current serving sworn AFP officer, holding the rank of Detective. Mr Constantinou joined the AFP in 2002, following completion of tertiary studies and employment in various other full-time roles. In August 2016, Mr Constantinou was deployed to Papua New Guinea (PNG) as a member of the AFP’s International Deployment Group, initially stationed at the Port Moresby International Airport for a period of 12 months. Mr Constantinou was deployed as a Security Advisor (aviation expert) to the Royal Papua New Guinea Constabulary (RPNGC). Originally the critical object of this role was to create and maintain a constructive and coordinated working environment with the RPNGC, non-RPNGC stakeholders and community through relationship building and in accordance with the Police Partnership Plan. This progressed to providing targeted capacity development activities, agreed with the RPNGC, to ensure delivery of a safe and secure APEC PNG 2018. Mr Constantinou submitted a Comcare claim on 10 May 2018 for a psychological stress injury, first noticing symptoms on 1 September 2016 at 8am having been subjected to workplace bullying, discriminatory behaviour, and assault. Mr Constantinou reported that he first sought treatment on 17 April 2018. The following is a timeline of events preceding Mr Constantinou’s lodgement of his Comcare claim:(a)On 22 July 2015, Mr Constantinou completed a psychological assessment conducted by AFP wellbeing for selection into deployment.(b)On 16 August 2016, Mr Constantinou arrived in PNG and was assigned to the Airport Policing Team.(c)On 13 September 2016, an incident occurred with Mr Constantinou’s Team Leader, Mr Peter Murphy.(d)On 13 September 2016, Mr Constantinou emailed AFP Safe Place recommending a refresher bullying training course in the PNG Mission given an incident he had been subjected to that day.(e)On 21 October 2016, Mr Twist (Mr Constantinou’s colleague) advised Superintendent Raiser of the incident which took place on 13 September between Mr Constantinou and Mr Murphy. Later that same day, Mr Constantinou forwarded Superintendent Raiser the report he had made to AFP Safe Place.(f)On 22 October 2016, Superintendent Raiser met with Mr Constantinou to discuss the incident with Mr Murphy.(g)On 24 October 2016, Superintendent Raiser and Commander Giles (Mission Commander) met with Mr Constantinou to discuss the incident with Mr Murphy.(h)On 27 October 2016, Superintendent Raiser met with Mr Constantinou and Mr Twist to advise that she would be meeting with Mr Murphy later that day as he had returned from leave.(i)On 27 October 2016, Superintendent Raiser and Superintendent Shane McLennan met with Mr Murphy to put Mr Constantinou’s allegations to him. Following this meeting, Mr Murphy was removed from his role as team leader so he would have no supervisory role over Mr Constantinou. He was counselled, did not have opportunities for higher duties, and did not have his deployment extended.(j)On 8 November 2016, Mr Dion Burrows lodged on the Complaints Reporting and Management System about Mr Constantinou’s incident with Mr Murphy, as Mr Constantinou had been reluctant to submit a complaint.(k)On 27 November 2016, Ms Samantha Donoghue, Investigator from Professional Reporting Standards (PRS), travelled to PNG to interview Mr Constantinou.(l)On 30 November 2016, Mr Constantinou moved to a different residential compound away from Mr Murphy.(m)On 24 December 2016, Mr Murphy’s deployment to PNG ended.(n)On 15 February 2017, Mr Murphy returned to PNG in a non-AFP role.(o)On 31 March 2017, Mr Murphy provided a Natural Justice response to the PRS investigation.(p)On 30 May 2017, following its investigation into the incident, PRS established a category 2 breach of the AFP Code of Conduct by Mr Murphy for inappropriate behaviour. (q)In mid-2017, Mr Constantinou was offered a contract extension to remain in PNG until December 2018.(r)On 3 August 2017, all members in PNG were sent an email reminding them of the Mission Commander’s Orders which prohibited consuming alcohol in Police Stations. (s)On 21 November 2017, a new AFP Acting Superintendent, Mr Darin Ferguson, was appointed to the team. Acting Superintendent Ferguson was then appointed as Acting Superintendent in the AFP APEC Operations Portfolio which incorporated the airport where Mr Constantinou worked.(t)On 21 December 2017, Mr Constantinou completed an AFP psychological services assessment form, noting ‘moderately’ ‘repeated, disturbing dreams of the stressful experience’. He noted extreme stress from double standards, the behaviours of others, the AFP’s lack of concern with deployed members, and AFP hierarchy. On the form, Mr Constantinou has written ‘incident last year-assaulted by “Commander”- dealt with by Safe Place and senior officers’.(u)On 5 February 2018, a new team leader of the airport team was appointed, Mr Andrew Bicker. He filled the position previously held by Mr Murphy.(v)On 20 February 2018, Mr Bicker sent an email to Mr Constantinou, reminding him to use the chain of command, to share information in its entirety, and not to operate independently.(w)On 19 March 2018, the new Airport Police Station was opened by the AFP and RPNGC Commissioners of Police.(x)On 22 March 2018, Mr Robert Wane (PNG Airport Police Commander) invited Mr Bicker to have a couple of beers after work on Friday 23 March to celebrate the successful opening of the new airport office.(y)On 22 March 2018, Mr Bicker and Mr Constantinou had a discussion about drinking alcohol on police premises. Mr Constantinou denies this discussion took place. (z)On 23 March 2018, a team BBQ was held to mark the opening of the new Police Station.(aa)On 23 March 2018, Mr Constantinou was observed with alcohol on RPNGC premises. Mr Constantinou does not deny consuming alcohol with Robert Wane in the Commanders office on police premises.(bb)On 26 March 2018, Mr Bicker counselled Mr Constantinou about the reported drinking at the station incident and other complaints relating to his work.(cc)On 27 March 2018, Acting Superintendent Ferguson provided information via email about Mr Constantinou’s behaviour and performance.(dd)On 31 March 2018, Mr Constantinou was removed from a trip to Brisbane allegedly due to the investigation of the 23 March 2018 incident where he breached Mission Commander’s Orders by consuming alcohol on Police Station premises.(ee)On 1 April 2018, Mr Constantinou provided a Natural Justice response to the AFP Chief of Staff in relation to the allegation of having consumed alcohol on Police Station premises in breach of the Mission Commander’s Orders. (ff)On 9 April 2018, Mr Constantinou was advised by email of a meeting to be held on 10 April 2018 to discuss his future in the mission. He was advised that he would be sent relevant paperwork and that he could bring a support person to the meeting.(gg)On 10 April 2018, a meeting took place between Mr Constantinou and Acting Superintendent Ferguson to discuss Mr Constantinou’s future in the mission. Mr Constantinou had a support person present at the meeting. Mr Constantinou advised that he would provide a response by 26 April 2018. The meeting was electronically recorded, and a copy of the recording was given to Mr Constantinou.(hh)On 12 April 2018, Mr Constantinou left PNG on recreational leave.(ii)On 17 April 2018, Mr Constantinou attended his general practitioner in Melbourne.(jj)On 27 April 2018, Mr Constantinou lodged his written response to the recommendation that he be removed from the PNG-APP Airport team.(kk)On 30 April 2018, Mr Constantinou’s deployment to PNG was revoked. He was required to return his work mobile phone and computer.(ll)On 1 May 2019, Mr Constantinou returned to Melbourne. He advised that he saw Mr Murphy at the airport when he was departing.LEGISLATION

Evidence

Evidence Before The Court

The key issues for determination are:(a)Did Mr Constantinou suffer from a ‘disease’ for the purposes of ss 5A(1) and 5B of the Act?(b)If so, was the ‘disease’ suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, such that the exclusionary provision in section 5A(1) of the Act applies?EVIDENCE BEFORE THE TRIBUNALMedical Dr Michael Epstein, Psychiatrist, opines in a medico-legal report for the Applicant of 12 March 2019 that Mr Constantiou:On the balance of probability your client did sustain an injury in the course of his employment with the AFP, that injury being a mild chronic Adjustment Disorder with depressed mood. His employment appears to have been a significant contributing factor to the onset of this injury. He continues to suffer from this condition although it has improved. Dr Epstein’s report details at length his opinion of the genus of Mr Constantinou’s psychological ailment: Theodoros Constantinou appears to have been roughly handled by his supervisor on 22 September 2016. Prior to that time there had been two incidents where photographs had been displayed that appeared to be racist referring to his ethnicity. One incident was in 2002 and the other in 2014 that led to action by the Deputy Commissioner in Canberra.He stated that he had no problems with work colleagues. After the complaint about being “assaulted” in September 2016 he believed that he was not treated the same by his managers and subsequently there was conflict with an acting manager that led to his deployment being revoked. He ceased work at that time and has not worked since then.He said that he was improving but after reading allegations about him in about July 2018 and again after hearing about questions being asked of his sexual behaviour in Papa New Guinea he felt much more upset and angry.He has a mild chronic Adjustment Disorder with depressed mood. The “assault” although technically an assault was more humiliating and embarrassing rather than causing any physical injury and this led to a falling out with his supervisor that had significant repercussions. His concern was not only about that particular incident but also about the way his complaints about this situation were dealt with and in particular that the commander in Papa New Guinea seemed to regard the incident as trivial and by implication that he was overreacting.Subsequently it appears that although asked to stay on for a further period of time after his deployment was due to cease in December 2017 issues arose with another acting supervisor that led to his deployment being revoked and it was after he returned to Melbourne that he ceased work and has not resumed work since then.He is having psychological counselling every six weeks but in general his mental health has improved and indeed he could return to work immediately. However he has lost confidence in management at the AFP and in my view it would be unwise for him to return to work with the AFP because of his loss of trust. He could work elsewhere however and his mental state would not prevent this but he may be wary about being vulnerable.…The performance management undertaken has contributed to his mental health issues but I am not in a position to judge as to whether or not these were performance management issues or whether this was a form of harassment.He should continue to see his psychologist monthly for at least the next six months. He should continue to take antidepressant medication. Once he returns to work in work that is appropriate it is likely that his mental state would improve.

Decision

Reasons for decision

The Tribunal, having considered all the evidence before it, determines that Mr Constantinou is excluded from any form of compensation under the Act as it has determined the action of revoking his deployment was a reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2) of the Act.DECISION Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision of 30 October 2018 under review to reject Mr Constantinou’s claim.

Ratio Decidendi

Legal Principle Established

The Respondent goes on to argue that had Mr Constantinou suffered a psychological condition due to events in the workplace prior to 18 February 2016, he would have indicated as much to a health professional, as he ultimately did on 17 April 2018. The Respondent highlights that during the period of April 2002 to 17 April 2018 there was a lack of complaints by Mr Constantinou to his GP about work issues relating to his employment with the AFP. It relies on the report of Dr Howie dated 4 February 2020, where he stated:Clinicians often think in terms of necessary and sufficient conditions for a disorder to develop.…I conclude that the event with Peter Murphy was not a sufficient condition for him to develop a disorder to a degree that therapy was sought, and a diagnosis made as part of this process.CONSIDERATION There was no dispute between the parties that Mr Constantinou suffered from a condition outside the boundaries of normal mental functioning and behaviour that was contributed to, to a significant degree, by his employment with the AFP. The dispute between the parties is two-fold: the actual onset (time period) of Mr Constantinou’s psychological condition and how it arose. Mr Constantinou contends his psychological condition was a result of a myriad of bullying events prior to his deployment. He argues it was contributed to, to a significant degree, by the September 2016 incident, through the inappropriate behaviour of his then supervisor Mr Murphy, and eventually manifested in him seeking medical attention. Mr Constantinou gave the following evidence at the hearing:Now as far as I can see, the first record that you had of any treatment for, should we call them mental ill health problems was 17 April 2018, does that sound right to you?---Yes, that's correct.Why didn't you go and get help earlier?---My concern at the time was the…The stigma associated in police with any mental health concerns, I tried to fight it through, I hadn't had any - given the response over the years from AFP and in respect of some of my complaints, I was loathed to actually approach the AFP and given the response of my commanders to the initial incident with Murphy, I was loathed to tell them about it, thinking that they might have an excuse to remove me from the mission. So I was - I didn't seek it and I tried to fight my way through what my concerns were because of those factors, especially the stigma associated with mental health amongst police officers. Mr Constantinou contends his claim should not be excluded, arguing the administrative action of revoking his redeployment was neither reasonable nor taken in a reasonable manner. Comcare contends that Mr Constantinou developed symptoms of his psychological condition following the revocation of his deployment to PNG in May 2018, and that this was 'reasonable administrative action taken in a reasonable manner'. This is significant because it is an essential precondition to the exclusionary provision in section 5A(1) of the Act which, if made out, excludes Mr Constantinou’s claim for compensation.Disease