Dimitra Michalopoulos and Comcare

Case [2012] AATA 850

[2012] AATA 850  

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/4328

Re

Dimitra Michalopoulos

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Mr S. Webb, Member
Date 3 December 2012
Place Canberra

The decision under review is set aside and in place thereof the Tribunal decides that Ms Michalopoulos suffered an injury in the form of an Adjustment Disorder in respect of which Comcare is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The deemed date of the injury is 6 September 2010.

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

Mr S. Webb, Member

COMPENSATION – psychological injury claim – alleged bullying and harassment – adjustment disorder significantly contributed to by employment – exclusionary factors – performance issues – actions taken relating to workload reporting are not administrative actions in respect of the employee’s employment – claimed injury was not suffered as a result of reasonable administrative actions – decision set aside

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 7, 14

Abrahams v Comcare [2006] FCA 1829
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26
Re Beasley and Comcare [2012] AATA 411
Re Carpenter and Comcare (2010) 116 ALD 190
Comcare v Caldwell [2008] FCA 2015
Commonwealth Bank v Reeve [2012] FCAFC 21
Shi v Migration Agents Registration Authority [2008] HCA 31
Szabo v Comcare [2012] FCAFC 129
Wiegand and Comcare [2010] AATA 790

REASONS FOR DECISION

Mr S. Webb, Member

3 December 2012

  1. For many years, Dimitra Michalopoulos was employed by the Australian Tax Office. She worked in the information technology area as a Team Leader at the Executive 1 level. Following some restructuring, she was transferred to a new section with responsibilities relating to the Tax Return Data Base (TRDB). Things did not go well. She experienced difficulties and believed that she was being bullied and harassed. Her managers raised performance issues. She became stressed and struggled with anxiety and other symptoms. She complained to her managers and to a Harassment Contact Officer. She believed that she was seen to be the problem and that no action was taken to address her allegations of bullying and harassment. She persisted with her work, but she suffered from psychological symptoms and was certified unfit for work.

  2. Ms Michalopoulos claimed compensation, but her claim was rejected by primary determination[1] and on reconsideration[2]. She applied for review.

    [1] T31.

    [2] T40.

  3. A number of issues relating to the Tribunal’s jurisdiction arose in the course of the hearing, and it is convenient to address these first.

    Jurisdiction

  4. Ms Michalopoulos wanted me to address injuries that may have arisen in the context of her employment after the date of her compensation claim. Comcare opposed this, but urged me to make factual findings in relation to the alleged resolution of the illness Ms Michalopoulos has claimed as an injury. Additionally, Comcare noted evidence of work stress and psychological symptoms during a period preceding the claimed date of injury, and submitted that any such injury exceeds the Tribunal’s present jurisdiction.

  5. The…

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AGLC
Dimitra Michalopoulos and Comcare [2012] AATA 850
Case
[2012] AATA 850
Decision Date

CaseChat Overview and Summary

In the case of Dimitra Michalopoulos and Comcare, Ms Michalopoulos, an employee of the Tax Office, brought a claim against Comcare for compensation related to an Adjustment Disorder she developed during her employment. The primary issue before the court was whether Ms Michalopoulos's Adjustment Disorder qualified as an injury for the purposes of the relevant Act, given the circumstances of her employment and the alleged failure of her supervisors to address her complaints of bullying and harassment. The court also had to determine the date of the injury and assess the evidence presented by both Ms Michalopoulos and her supervisors, Mr Sharma and Mr Hijazi.

The court examined whether Ms Michalopoulos's injury, an Adjustment Disorder, could be excluded under the exclusionary proviso in s 5A of the Act. It found that the proviso was not applicable, as the necessary conditions were not met. The court concluded that Ms Michalopoulos's Adjustment Disorder was not excluded as an injury under the Act, and Comcare was liable to pay her compensation. The court also determined the date of the injury to be 6 September 2010, the day before Ms Michalopoulos took leave due to her symptoms of anxiety and depression.

The court found that Ms Michalopoulos had not been provided with procedural fairness and natural justice, and there were unresolved questions regarding the collection and reporting of her information without her knowledge. These matters were identified as issues to be considered by the Tax Office and others. The court also highlighted the importance of weighing Ms Michalopoulos's evidence against that of Mr Sharma and Mr Hijazi, given the credibility of these witnesses was in question due to the complaints against them.

The court set aside the decision under review and ordered that Comcare was liable to pay Ms Michalopoulos compensation for her Adjustment Disorder injury. The court emphasised that the determination of the date of the injury and the assessment of the evidence were critical to the resolution of the case.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal’s task is to make the correct or preferable decision on the materials before it. In some circumstances it may be permissible to find facts concerning the resolution of an illness under claim as an injury when determining issues of threshold liability, but it will only be appropriate to do so if the Tribunal has jurisdiction to do so and both parties have been given an adequate opportunity to adduce and test relevant evidence addressing the issue. This has not occurred in Ms Michalopoulos’ case. No claims under particular heads of entitlement in respect of the claimed injury have been made. The alleged resolution of the injury has not properly been tested and I will make no findings in that regard. These are properly matters for others when dealing with claims under particular heads of entitlement.The contextual facts Even though there is evidence that Ms Michalopoulos was suffering from suspected depression and work stress on 3 February 2010 and over preceding months, she maintains that she was well when she commenced duties in the TRDB section under Mr Sharma’s supervision on 16 February 2010. Her duties were as a team leader, supervising eight people, five of whom were permanent public service employees of the Tax Office and three were contractors engaged by the Tax Office. It is quite clear that Ms Michalopoulos and Mr Sharma had different expectations concerning reporting arrangements within the team she led. It appears that Mr Sharma expected the contractors to report directly to him. Mr Ahmed Hijazi, his supervisor, supported this arrangement. Ms Michalopoulos informed me that she was not apprised of this arrangement prior to taking up her new duties and she was surprised by it. The evidence of Ms Chan La supports this point[9]. It appears that within one week on Ms Michalopoulos commencing her duties as a Team Leader in the TRDB section, Mr Steven Neethyrajah, an on-going Executive Level 1 officer on Ms Michalopoulos’ team, arranged with Mr Sharma to report directly to him rather than to Ms Michalopoulos. Mr Sharma informed me that he made this decision in consultation with Mr Ahmed Hijazi, his supervisor, but he did not consult or inform Ms Michalopoulos before doing so. Mr Hijazi confirmed that he approved this arrangement. Mr Sharma could not explain why Mr Neethyrajah had approached him about this changed reporting arrangement, and he gave no cogent explanation of why he had agreed to approve it. [9] Exhibit A7. Thus, under these arrangements, Ms Michalopoulos had only four members of her team reporting directly to her, but she was required to report to Mr Sharma about the tasks allocated to each member of the team and the work of the team as a whole. Ms Michalopoulos’ consistent evidence is that certain members of her team, most notably Mr Ashok Dhawan, a contractor allocated to her team, provided information reports directly to Mr Sharma and then refused to provide her with the same information for her reporting purposes. Her evidence is that this circumstance caused her difficulty in meeting Mr Sharma’s reporting requirements in respect of “Infras” – a service management system for the receipt, allocation and monitoring of TRDB faults or errors and the deployment of repairs within the section. She informed me that she explained the problem to Mr Sharma and sought his assistance to resolve it, but without a positive response. Mr Sharma identified Ms Michalopoulos’ workload and her performance as the problem, and required her to drop one of the three corporate roles she was then undertaking – she decided to drop her role as a Health and Safety Representative.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that the exclusionary proviso in s 5A is not enlivened and Ms Michalopoulos Adjustment Disorder disease is not excluded as an injury for the purposes of the Act.Conclusion The decision under review must be set aside. I am reasonably satisfied that Ms Michalopoulos suffered an injury in the form of a disease, being an Adjustment Disorder, in relation to which, under s 14, Comcare is liable to pay her compensation. It remains to determine the date of the injury under the terms of s 7(4). The weight of the medical evidence is that Ms Michalopoulos suffered from symptoms of anxiety and depression that is attributable to her employment from mid-2010. I accept that this signifies the presence of an impairment at that time. On the evidence of Dr Hundertmark, these symptoms were first prominent when Ms Michalopoulos took three weeks’ leave in August 2010. The evidence establishes that this period of leave was in September 2010 and not August. Thus, I find that the date of Ms Michalopoulos’ Adjustment Disorder injury is 6 September 2010, the day immediately prior to the period of leave that commenced on 7 September 2010. Ms Michalopoulos raised a number of matters in submissions that I cannot squarely address. It is appropriate to observe that there are a number of unresolved questions about the Events Diary and about Mr Hijazi’s related directions and actions – it appears that information about Ms Michalopoulos was collected, reported, compiled and presented without the material being placed on an official or personnel file, and without her knowledge. There are also unresolved questions about the manner in which Mr Hijazi and Mr Sharma responded to and apparently investigated Ms Michalopoulos’ complaints of bullying and harassment under the various instruments, directions, instructions, policies and procedures that were in force in the Tax Office at the time. On the present evidence it appears, at least, that she has not been provided with procedural fairness and natural justice; but these are matters for the Tax Office and others to consider. Ms Michalopoulos represented herself in the proceedings. She was an executive level employee of the Tax Office with 25 years of experience, who received an Award for Excellence in October 2009 and two Certificates of Appreciation, most recently and relevantly in October 2010[65]. Her claim arises from allegations of bullying and harassment, primarily by Mr Dhawan but also by Mr Sharma, in circumstances where she alleged that Mr Sharma and Mr Hijazi failed to address her complaints and failed to provide her with appropriate support. There can be no question that Comcare was squarely on notice of the nature of her claim and the allegations she pressed in relation to Mr Dhawan, Mr Sharma and Mr Hijazi from the outset. The evidence of Mr Sharma and Mr Hijazi is of pivotal importance to Comcare’s assertions in respect of the under-performance issues that are said to enliven the exclusionary proviso in s 5A. The specific issues pressed by Comcare require Ms Michalopoulos’ evidence to be weighed against that given by Mr Sharma and Mr Hijazi. Rightly or wrongly, Mr Sharma and Mr Hijazi are both the subject of complaints by Ms Michalopoulos. It is quite clear that the reliability and credit of these witnesses is in issue. [65] Exhibit A5.

Ratio Decidendi

Legal Principle Established

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