Dango and Comcare (Compensation)

Case [2018] AATA 2898

Dango and Comcare (Compensation) [2018] AATA 2898 (15 August 2018)

Division:GENERAL DIVISION

File Number(s):      2015/0513

Re:Marilyn Dango

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member K Parker

Date:15 August 2018

Place:Melbourne

The Tribunal sets aside the reviewable decision and in substitution, decides that Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) to pay compensation to Mrs Marilyn Dango in respect of the injury of “aggravation of adjustment disorder with depression and anxious mood” which occurred on 23 February 2014.

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

Member K Parker

Compensation – psychological injury – adjustment disorder with depressed and anxious mood – whether aggravation or continuation of underlying non-compensable condition – disease – whether injury was the result of administrative action – identification of administrative actions – underperformance management process – refusal to transfer employee to a different branch within the Department – whether each administrative action was reasonable action taken in a reasonable manner – whether actions were inconsistent with the employer’s obligations under an enterprise agreement and its internal policies – decision set aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 14, 71

Cases

Comcare v Chenhall [1992] FCA 353

Comcare v Martin (2016) 258 CLR 467

Comcare v Martinez (No 2) (2013) 212 FCR 272

Comcare v Mooi [1996] 69 FCR 439

Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463

Re Dango and Comcare [2013] AATA 597

Drenth v Comcare [2012] FCAFC 86

Gropel v Comcare [2018] FCA 1146

Hart v Comcare (2005) 145 FCR 29

Lim v Comcare (2017) 250 FCR 298

Lee and Comcare [2012] AATA 867

Melder and Comcare [2013] AATA 534

Tippett v Australian Postal Corporation [1998] FCA 335

Wieczorek and Comcare (Compensation) [2017] AATA 994

Secondary Materials

Department of Immigration and Citizenship - Managing Underperformance Policy February 2012 (Policy)

DIAC Enterprise Agreement 2011-2014 (DIAC EA)

REASONS FOR DECISION

Member K Parker

15 August 2018

  1. Mrs Marilyn Dango has been employed as an Australian Public Service (APS) employee under the Public Service Act 1999 (Cth) for approximately 17 years.  Mrs Dango was initially working in a finance role and said she had a background in finance.  Mrs Dango completed Year 12 at a secondary school in India, following which she completed a one-year secretarial course.[1]  In 2000 and 2001, Mrs Dango completed a one-year Diploma of Business Administration at the North Melbourne Institute of Technology.[2]

    [1] Refer paragraph [4] of Mrs Dango’s Statement dated 23 October 2015 (Mrs Dango’s Statement).

    [2] Refer paragraph [12] of Mrs Dango’s Statement.

  2. Since 1 July 2008, Mrs Dango has worked in the Department of Home Affairs, formerly known as the Department of Immigration and Border Protection, and before that the Department of Immigration and Citizenship.   In 2009, Mrs Dango held the APS4-level position of Finance Officer in the Settlement…

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AGLC
Dango and Comcare (Compensation) [2018] AATA 2898
Case
[2018] AATA 2898
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Dango against a decision by Comcare regarding compensation for an injury sustained in 2014. The dispute centred on whether Mrs Dango's employment contributed to a significant degree to the aggravation of a pre-existing mental health condition, specifically an "adjustment disorder with depression and anxious mood". The Administrative Appeals Tribunal (AAT) was required to determine if this aggravation constituted an "injury" under the relevant Act and whether certain administrative actions taken by her employer were reasonable and undertaken in a reasonable manner, which would otherwise exclude Comcare's liability.

The Tribunal was tasked with determining if Mrs Dango suffered an ailment that qualified as an "injury" under section 5A of the Act, considering her pre-existing condition. A key legal issue was whether the exclusion provision in section 5A(1) applied to the "Informal Performance Management Process" and the "Transfer Decision" made by her employer. This required the Tribunal to assess the reasonableness of the action taken and the manner in which it was undertaken.

The Tribunal found, based on medical evidence, that Mrs Dango did suffer an ailment in 2014, which was an aggravation of her underlying adjustment disorder. It was satisfied that her employment contributed to this aggravation to a significant degree. While the Tribunal found sufficient causation for the exclusion provision to potentially apply to both the performance management process and the transfer decision, it concluded that the performance management process was not undertaken in a reasonable manner, and the transfer decision was neither reasonable action nor undertaken in a reasonable manner. Consequently, the exclusion in section 5A(1) did not operate to exclude liability. The Tribunal was satisfied that the 2014 injury resulted in Mrs Dango's incapacity for work and impairment.

The Tribunal set aside the reviewable decision and substituted a new decision finding Comcare liable under section 14 of the Act for the injury to Mrs Dango, being the aggravation of her adjustment disorder with depression and anxious mood, which occurred on 23 February 2014.

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

This issue was not in dispute between the parties. Based on the medical evidence of a number of the doctors, the Tribunal finds that the 2014 Injury resulted in incapacity for work or impairment. By the time of the hearing, Mrs Dango had successfully returned to work on reduced hours (i.e. for 7 hours per day instead of the usual 7.5 hours per day).CONCLUSION The Tribunal is satisfied that Mrs Dango suffered an ailment in 2014. The Tribunal finds that this ailment was a disease, being the aggravation of Mrs Dango’s 2011 Condition. The 2011 Condition was previously diagnosed as “depression”. Based on updated medical diagnoses given at the hearing of this application, the Tribunal finds that Mrs Dango’s underlying disease was, “adjustment disorder with depression and anxious mood”. The Tribunal is satisfied that Mrs Dango’s employment contributed to, to a significant degree, the aggravation of Mrs Dango’s underlying “adjustment disorder with depression and anxious mood”. The Tribunal is satisfied that Mrs Dango’s ailment fell within the definition of “injury” within the meaning of s 5A of the Act. The Tribunal was invited to exclude liability with respect to the 2014 Injury by operation of s 5A(1) of the Act. The Tribunal considered whether this exclusion applied with respect to the first administrative action identified being the Informal Performance Management Process. It also considered whether it applied with respect to the second administration action identified being the Transfer Decision. Although the Tribunal was satisfied for each administrative action that there was sufficient causation as required by the wording in the exclusion provision, the Tribunal concluded that the Underperformance Management Process was reasonable action but was not undertaken in a reasonable manner. With respect to the Transfer Decision, the Tribunal concluded that it was neither reasonable action nor taken in a reasonable manner. For this reason, the Tribunal was not satisfied that s 5A of the Act did not operate in this case to exclude liability with respect to the 2014 Injury. The Tribunal concludes that the 2014 Injury resulted in Mrs Dango’s incapacity for work and impairment. The Tribunal finds that the 2014 Injury occurred on 23 February 2014. Accordingly, the Tribunal sets aside the reviewable decision and in substitution, decides that Comcare is liable under s 14 of the Act for the injury to Mrs Dango of “aggravation of adjustment disorder with depression and anxious mood” which occurred on 23 February 2014.I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for decision of Member K Parker[sgd]………………………………………AssociateDated: 15 August 2018Counsel for the Applicant: Ms Jennifer HewsonSolicitors for the Applicant: Shine LawyersCounsel for the Respondent: Ms Cathy DowsettSolicitors for the Respondent: Australian Government SolicitorDate of the hearing: 24, 25, 26 and 27 July 2017Date final closing submissions received: 30 August 2017ANNEXURE A – Extract from the Policy (as relevant)6. Overview of the managing performance process6.1 The table below outlines the process for managing underperformance for ongoing employees and provides links to relevant sections in this policy and the EA…Stage 1 DescriptionThe supervisor:- Identifies performance concerns and contacts the HR Service Centre or STO HR area for advice before taking any action. Attempts to resolve underperformance informally through initial discussions with the employee including though regular performance feedback. This part of the process is called “Step 1” and takes place over four weeks.- Provides appropriate support and strategies and takes action to address the underperformance.- Ensures that:o A written record is made of the initial discussions including identification of any mitigating factors impacting on the employee’s performance,o The record is provided to the employee,o There is a written acknowledgement that they have either received a copy of or have read the record of the discussion.See: Initial discussions about underperformanceSee: EA clause 5.13.Stage 2 …Initial discussions about underperformance (Step 1)7. Responding to underperformance7.1Supervisors must respond promptly to cases of underperformance. Employees who are failing to meet the performance expectations outlined in their PDA and whose performance has been or is likely to be rated as ‘Improvement Needed’ are considered to be underperforming. See: EA clause 5.13.8. Regular feedback8.1Ongoing, regular feedback is an important part of managing performance. Supervisors must discuss an employee’s performance with the employee on a regular basis so that the employee is made aware of any concerns with his/her performance as early as possible. Where performance concerns are identified, feedback regarding these concerns must be provided without delay.8.2Where the employee’s performance is failing to meet performance expectations set out in the PDA and does not improve through the provision of informal feedback, an underperformance discussion should be scheduled. See: Performance Management Policy9. Initial underperformance discussions (Step 1)9.1Where there are concerns about performance, and these have not been resolved through regular feedback, initial discussions should occur. These discussion are part of the initial attempt to address the performance issues and should identify any mitigating factors impacting on the employee’s performance. These discussions should also be documented. This is Step 1 of the managing underperformance process.9.2An underperformance discussion can take place at any time during the year and should occur when underperformance concerns are identified. Such discussions should not be delayed until a mid or end-cycle PDA review. However, before taking an action, please contact the HR Service Centre (or STO HR area) for advice to ensure the appropriate steps are being taken.9.3Initial underperformance discussions provide an opportunity for a supervisor to discuss the employee’s underperformance, identify the causes of underperformance, develop strategies to improve performance, and provide the employee with a reasonable period of time to implement these strategies.9.4These discussions should explore and identify possible reasons for the underperformance which may include factors unrelated to the employee’s duties or the workplace e.g. issues of a personal nature such as ill health, family problems.9.5The discussions should take place in a private venue and the supervisor must give the employee reasonable and sufficient prior notice about the discussion. The supervisor must also advise the employee of the purpose of the meeting (i.e. to discuss performance concerns) and of their option to bring a support person with them to the meeting if they wish.9.6When planning a performance discussion, the supervisor should take into account any need for support and provide the employee with a reasonable and sufficient period of time to arrange this.9.7If the employee elects to bring a support person or representative with them to the meeting, they should advise their supervisor prior to the meeting, with as much notice as possible. Similarly, if the supervisor also elects to involve a third party in the discussion, they should advise the employee prior to the meeting with as much notice as possible.9.8The supervisor or employee may postpone a meeting before or during a discussion, for a reasonable period, to obtain further information and/or support.9.9The following is good practice when discussion underperformance.

Ratio Decidendi

Legal Principle Established

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