CXFD and Comcare (Compensation) - [2021] AATA 2377

CXFD and Comcare (Compensation) [2021] AATA 2377 (19 July 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4741, 2020/1489
Re:CXFD
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:19 July 2021
Place:Sydney

2019/4741
The reviewable decision made on 2 August 2019 is set aside, and in substitution, it is decided that:
·pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), the Respondent is liable in respect of aggravation of ‘Major Depressive Disorder with Anxious Distress’, suffered on 6 March 2019;
·the Respondent is not liable pursuant to s 14 of the SRC Act in respect of ‘Major Depressive Disorder with Anxious Distress’ or aggravation thereof suffered from 2014 and prior to 6 March 2019;
·the Respondent is not liable pursuant to s 14 of the SRC Act in respect of ‘Hypertension’ or exacerbation thereof suffered before or after 6 March 2019.

2020/1489
The reviewable decision made on 14 February 2020 to refuse to accept liability for ‘tinnitus’ pursuant to s 14 of the SRC Act is affirmed.
....................................................[sgd]………….....
Mrs J C Kelly, Senior Member
CATCHWORDS
COMPENSATION – workers compensation – Major Depressive Disorder with Anxious Distress and Hypertension – administrative action -- where injury was contributed to, to a significant degree, by the employment – whether injury was suffered as a result of reasonable administrative action taken in a reasonable manner – decision under review set aside and substituted – Tinnitus – Applicant claimed to suffer tinnitus as a result of noise emitted by air conditioners – whether tinnitus was contributed to, to a significant degree, by the employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14
CASES
Beasley and Comcare [2012] AATA 411
Bropho v Human Rights and Equal Opportunity Commission and Another (2004) 135 FCR 105
Georges and Telstra Corporation Ltd [2009] AATA 731.
Martinez and Comcare [2013] AATA 949
Radulovic and Comcare [2010] AATA 777
Wilson and Comcare [2010] AATA 396
SECONDARY MATERIALS
Public Services Regulations 1999 (Cth) reg 3.10
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
19 July 2021
Decisions under review

There are two matters before the Tribunal. In matter 2019/4741, Comcare, the Respondent, refused to accept liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of ‘Major Depressive Disorder with Anxious Distress’ and ‘Hypertension’ or aggravation thereof.
In matter 2020/1489, the Respondent refused to accept liability for ‘tinnitus’ under s 14 of the SRC Act because the Applicant’s [CXFD] employment did not significantly contribute to the occurrence of the Applicant’s condition.
I made a confidentiality order in respect of the identities of employees or former employees of Services Australia (the employer), previously known as the Department of Human Services, because of the nature of the allegations about workplace behaviour. That has resulted in some repetition in these reasons for decision.
MATTER 2019/4741
Background
On 13 March 2019, the Applicant lodged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CXFD and Comcare (Compensation)

Details

AGLC: CXFD and Comcare (Compensation) [2021] AATA 2377
Case: [2021] AATA 2377
Decision Date: 19 July 2021

CaseChat Overview and Summary

This matter concerned an application by CXFD against Comcare, heard by Senior Member Mrs J C Kelly. The applicant sought compensation for Major Depressive Disorder with Anxious Distress and Hypertension, alleging these conditions were contributed to, to a significant degree, by his employment. The applicant also claimed to suffer from tinnitus, allegedly caused by air conditioner noise, and sought compensation for this condition as well.

The primary legal issues before the Tribunal were whether the applicant's Major Depressive Disorder with Anxious Distress and Hypertension constituted an injury suffered as a result of reasonable administrative action taken in a reasonable manner, and whether his tinnitus was contributed to, to a significant degree, by his employment. The applicant had raised numerous complaints regarding the administrative action taken against him, including allegations of unreasonableness, lack of confidentiality, denial of procedural fairness, and humiliation.

The Tribunal considered the administrative action taken on 6 March 2019, which involved the applicant being approached at his desk, informed of his suspension from duties, and provided with letters detailing a Code of Conduct investigation and potential reassignment or suspension. He was escorted from the premises and directed to remain out of the workplace. The Tribunal applied the principle that whether administrative action is reasonable and taken in a reasonable manner requires an objective consideration of the circumstances, meaning the action must not be irrational, absurd, or ridiculous, and must be tolerable and fair. The Tribunal noted that any unreasonableness must arise from the action itself, not merely the employee's perception of it.

The Tribunal set aside the decision under review concerning the applicant's Major Depressive Disorder with Anxious Distress and Hypertension, finding that the administrative action taken was not reasonable and not taken in a reasonable manner. However, the Tribunal affirmed the decision under review regarding the applicant's claim for tinnitus, finding that it was not contributed to, to a significant degree, by his employment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Following is a copy of the undated letter drafted by the Delegate and delivered to the Applicant by the Messenger on 6 March 2019:Dear [CXFD]SUSPECTED BREACH OF THE CODE OF CONDUCTI am writing to advise you that as a duly authorised delegate, I am currently making an assessment to determine whether you should be temporarily reassigned different duties, or suspended from duty pending the outcome of an investigation into your suspected breach of the Australian Public Service (APS) Code of Conduct.Temporary reassignment of duties and suspension are not forms of punishment. They are administrative measures designed to protect the interests of Department of Human Services (the department) and the APS.In order to suspend you from duty, I am required to form the opinion that:• You have, or may have, breached the Code of Conduct; and• It is in the public, or the department's interest.The information provided to me indicates that a complaint has been received about your behaviour in the workplace. The behaviour detailed in the allegations (which will be provided to you in due course for comment), suggests that you may have behaved in a manner that could potentially represent harassment.I understand that a duly authorised person will be assigned to undertake a formal investigation regarding your suspected breach of the APS Code of Conduct.Not a decision in relation to suspected breachesPlease note that it is not my task to establish whether or not you breached the Code of Conduct, but rather to make decisions as to whether you should be temporarily reassigned different duties or suspended from duty, and whether any suspension from duty should be with or without pay. I understand that an investigation will be undertaken by an authorised party in the near future. You will be contacted in due course by an investigator and provided details of the allegations made, as well as invited to respond to the allegations.Why this action is being consideredWhile this investigation is being undertaken, I do not believe it is in the interests of the department or yourself that you remain in the workplace. The nature of the allegations made, if proven, may constitute a serious breach of the Code of Conduct. Further, allegations of this type, if proven, have the potential to damage the department's reputation. I am also of the view that allegations of this type suggest a potential risk to the health and wellbeing of others, noting that the department is committed to providing all staff with a safe and respectful workplace, free from harassment.Having considered the circumstances, I am considering whether you should be initially suspended from duty with pay.Opportunity to commentBefore making a final decision as to whether it would be appropriate to initially suspend you from duty with pay, pending the outcome of the Code of Conduct investigation, I would like to provide you with an opportunity to comment.You have until close of business on Monday 11 March 2019, to provide me with a statement in writing regarding my proposal to suspend you from duty with pay whilst the allegations are investigated. You do not have to make a statement if you do not wish to do so.If you would like to provide me with a written statement, or provide supporting documents, you may forward them to me at [email address].I intend to provide a copy of any material you provide to me to the investigator. If you do not want me to do that, you should tell me and explain why you do not want that to happen.You are not to report for duty for the time beingPending my decision regarding your suspension, you will be deemed to be on duty, but not required to report for duty until I make a final decision (that is, you will be on miscellaneous leave with pay).Because you are not required to report for duty, I am directing you to remain out of the workplace until instructed otherwise.I am also formally directing that you do not make, or attempt to make any contact, directly or indirectly, with any departmental employee based, or who works from time to time, at the department's [Geographical Area] Customer Service Centre.Any failure to comply with such directions may potentially result in a referral for consideration of a suspected breach of the APS Code of Conduct, in particular section 13(5) which states; 'An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction'.If you need to enter departmental premises for any reason, other than to transact business as a departmental customer, you must contact me, on [telephone number] to seek permission to do so.You will be notified of my final decision in regards to suspension, via email, to your personal email address as recorded in ESSentials: [email address]. Please let know if you would prefer that I send my correspondence to a different email or postal address.Access to employee assistanceI appreciate that the information contained in this letter and the enclosed material may be difficult for you to comfortably absorb. If you would like to talk to someone about your feelings, I encourage you to make use of the department's Employee Assistance Program…

Ratio Decidendi

Legal Principle Established

The Applicant’s complaints about the administrative action and manner in which was undertaken overlapped and have been variously expressed. In summary they were that: · The process was not reasonable, confidential, professional, appropriate or conducted in a safe manner;· He was denied procedural fairness/natural justice;· He was not provided with notice or an opportunity to have a support person present;· He was not given details of the allegations;· There was no preliminary investigation;· He was not afforded the presumption of innocence;· There was no HR person present;· He was placed at significant risk;· The allegations were from one person whose inappropriate behaviour he had tried to address;· He was embarrassed and humiliated in front other employees.Consideration The administrative action taken on 6 March 2019 comprised the following: ·Without prior notice, the Applicant was approached at his desk by the Messenger, a senior officer of his employer who was based in his geographic area but not at his work location. The Messenger asked the Applicant to log-off and join the Messenger in the Carers’ Room. The Messenger then told the Applicant that he had been suspended from his duties, and the two letters from the Director and the Delegate, set out above, came to his attention.·The effect of the two letters was that he would be the subject of a Code of Conduct investigation and was being considered for temporary reassignment to different duties or suspension from his duties with pay while the investigation was undertaken, he was being given an opportunity provide a response in relation to possible suspension until close of business on 11 March 2019, would be on miscellaneous leave with pay until that decision was made, and was directed to remain out of the workplace until instructed otherwise and not to make any contact with any employee from his place of work. ·He was escorted from the office by the Messenger, after returning all assets of the employer, including his building pass. The following is taken from the Respondent’s Statement of Facts, Issues and Contentions. It is a useful summary of the authorities. Whether administrative action is reasonable and/or taken in a reasonable manner requires an objective consideration of the circumstances.[2] The Tribunal needs to be satisfied that there was nothing untoward about the action, that it was not irrational, absurd or ridiculous.[3] The test is not whether things could have been done more reasonably or in a different, more acceptable, way.[4] The action not need to be conducted perfectly, but it needs to be tolerable and fair.[5] Any 'unreasonableness' must arise from the actual administrative action in question, rather than the employee's perception of it.[6][2] Georges and Telstra Corporation Ltd [2009] AATA 731. [3] Radulovic and Comcare [2010] AATA 777.[4] Bropho v Human Rights and Equal Opportunity Commission and Another (2004) 135 FCR 105.[5] Beasley and Comcare [2012] AATA 411, citing Wilson and Comcare [2010] AATA 396.[6] Martinez and Comcare [2013] AATA 949.