Drinkwater and Comcare (Compensation)
[2017] AATA 1228
•8 August 2017
Drinkwater and Comcare (Compensation) [2017] AATA 1228 (8 August 2017)
Division:GENERAL DIVISION
File Number(s): 2016/1850
Re:Glenn Drinkwater
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:8 August 2017
Place:Sydney
The reviewable decision, being the decision of Comcare made 22 March 2016 denying liability to compensate Mr Drinkwater in respect of Adjustment reaction with anxious mood, is set aside.
In substitution, it is decided that Comcare is liable to compensate Mr Drinkwater in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury being Adjustment disorder with anxiety suffered by him in April 2015.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Mr Drinkwater.
.....................................[sgd]...................................
Deputy President J W Constance
CATCHWORDS
COMPENSATION – injury – Adjustment Disorder with anxiety – reasonable administrative action – whether administrative action taken in respect of employee’s employment – mobility process – redeploying employee – employee found unsuitable for certain roles – employee not redeployed to preferred area – not administrative action – operational action – actions not directed specifically to individual employee – decision set aside and decision made in substitution
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
CASES
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463; [2012] FCAFC 21
REASONS FOR DECISION
Deputy President J W Constance
8 August 2017
INTRODUCTION
Since 2001 Mr Drinkwater has been employed as a Customs Officer in the Australian Customs and Border Protection Service within the Department of Immigration and Border Protection or its successor, the Australian Border Force.
In 2015 Mr Drinkwater sought payment of compensation by Comcare for anxiety and stress which he claimed was contributed to by his employment.[1] His claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
[1] Claim form lodged by Mr Drinkwater on 18 November 2015; exhibit R1 p.6.
On 22 March 2016 Comcare denied liability to compensate Mr Drinkwater in respect of the claimed condition.[2]
[2] Exhibit R1 p.179.
Comcare accepts that it would be liable to compensate Mr Drinkwater in respect of Adjustment Disorder with anxiety but for section 5A of the Act which defines “injury” for the purposes of the Act. Relevantly, subsection 5A(1) excludes from the definition of injury “a disease, …… suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.
Comcare has identified five actions, each of which it says was reasonable administrative action taken in a reasonable manner in respect of Mr Drinkwater’s employment. Comcare argues that the Adjustment Disorder suffered by Mr Drinkwater was suffered as a result of one or more of these administrative actions.
For the reasons which follow the decision under review will be set aside. In substitution it will be decided that Comcare is liable to compensate Mr Drinkwater in respect of the injury being Adjustment Disorder with anxiety.
BACKGROUND
Unless otherwise stated, findings of fact in these reasons for decision are made on the basis of the evidence of Mr Drinkwater.
Mr Drinkwater has been employed as a Customs Officer since he completed his initial training and has been promoted to the highest level attainable in that role. When he commenced his employment he was informed that there was a “regular mobility process”[3] under which employees would be moved around various areas of the Department (then known as the Australian Customs and Border Protection Service). Prior to 2013 this policy was not implemented.
[3] Exhibit A1 para. 5.
In 2004 Mr Drinkwater attained certification as an x-ray operator which permitted him to operate scanning machines as part of his duties.
In 2011 or 2012 Mr Drinkwater started working in a role in which he did not require x-ray certification and after he commenced this work his certification expired. He was unaware that this had happened until around mid-2013.
In 2012 Mr Drinkwater became aware of allegations of corruption being made against a number of Customs Officers. He was not involved in any of these allegations. During the first half of 2013 he learned that the Department was implementing the mobility policy and that the shifts of some Officers were being changed. Previously Officers, including Mr Drinkwater, had retained the same shifts for many years. In that time, management had not raised the issue of mobility and Mr Drinkwater had structured his life around shift work and the income which resulted from such work.
In June 2013 Mr Drinkwater was informed by his managers that he was part of the mobility program and that he should submit a form stating his five preferred areas for transfer. This he did. He was not surprised by this requirement in light of his length of service.
Mr Drinkwater nominated his preferred areas of employment as follows:
·International Mail
·Aviation Goods
·Waterfront Operations
·Maritime Division
·Client Services.
Mr Drinkwater also completed a section of the form which requested details of his personal circumstances to be considered during the mobility process. He set out his reasons for remaining in his current position in the Aviation Traveller Division. They related to the advantages of his working shift-work in meeting his obligations to family members.
By reason of his experience and qualifications as a Customs Officer he expected to be transferred to his first or second nominated position.
After lodging his statement of preferences Mr Drinkwater spoke to the respective Duty Managers of International Mail and Aviation Goods and discussed the work involved in these areas. After this he felt he was “in the running” to be transferred to International Mail. He was keen to secure this role because of his interest in the area of work and because this workplace was closer to his home than any of the others.
In October 2014, in accordance with the mobility process, management identified a proposed placement for Mr Drinkwater in International Mail. He was engaged in the mobility process by reason of his 13.29 years working in the Aviation Traveller Division.[4] However as Mr Drinkwater did not hold a current certification for x-ray technology he was required to undertake psychometric/aptitude testing. He did not pass this test and it was decided that he was unsuitable for the position. Mr Drinkwater subsequently obtained his x-ray certification but remained ineligible for the position as he had failed the aptitude test. For the same reason he was ineligible for a position in Aviation Goods. Mr Drinkwater remained in his position in the Aviation Traveller Division.
[4] Exhibit R1 p.27.
In February 2015 Mr Drinkwater was again identified by the Department as an officer to be moved under the mobility process. He submitted his five preferences for employment as follows:
·International Mail, DGM and Client Services
·Aviation – Goods
·Maritime Division
·Maritime Division
·National Border and Targeting Centre.[5]
[5] Exhibit R1 pp.67-68.
Mr Drinkwater repeated the details of his personal circumstances which needed to be considered.
On 4 April 2015 a manager met with Mr Drinkwater and advised him that it was proposed that he be placed in Client Services at Customs House Sydney, a location outside the airport. The following is a note of that meeting recorded by Ms Barton who was then the Acting Manager Operations, Aviation Travellers. I am satisfied that this note was made on the basis of information supplied to her by the manager.
·Glen was advised and immediately stated that he was not happy with his allocation to Client services. Glen stated this was not one of his choices. I stated that it was listed on his preferences. He said it was only [there] as he had to make 5 choices as on the form it was his last choice.
·Glen said he would like to speak to the director; and has sent Jim Beach an email requesting a meeting. Glen stated that he had filled out special circumstances and believes they were not considered as indicated by his appointment to client services.
·Glen stated that he could not sleep last night and is concerned about his move to Client Services. I advised him not to be so worried until he speaks to Jim and can have his concerns allayed that his special circumstances were considered.[6]
[6] Exhibit R1 p.84.
On 9 April 2015 Mr Drinkwater consulted his General Practitioner, Dr Abi-Hanna. He recorded that at the time Mr Drinkwater “reported symptoms of anxiety and insomnia over the preceding week, after being advised that his duties and position at work were going to be modified/moved to another area.” [7]
[7] Exhibit R1 p.139.
On 27 May 2015 Ms Barton met with Mr Drinkwater. In an email of the same date she records details of the meeting as follows:
I met with Glenn today and advised of his AIM placement. Glenn has advised he will be appealing this under the points below:
·He is very concerned his submitted minute on his personal circumstances was not taken into consideration
·should he be moved to Client Services (which is not a Border Force area as per his chosen career path) then he be financially disadvantaged to the point of losing his house
·He is moving to an area he feels does not offer him any scope to learn new skills
·He is very stressed over this process and the outcome and he is now on medication
·He would like to know where/how to lodge his appeal and who he can talk to in P&P to discuss his options and the effect this is having on him
·He believes his recent X-ray qualifications should be taken into consideration for a AIM placement at the international mail centre should he have to be mobilised from this area
·He is very disappointed in this decision and intends to fight it all the way. [8]
[8] Exhibit R1 p.85.
On 2 June 2015 Mr Drinkwater was formally advised by management that “he would be mobilising from Aviation Traveller to Client Services under Section 25 of the Public Service Act 1999.” [9]
[9] Exhibit R1 p.29.
Mr Drinkwater met with his Regional Commander (Mr Fitzgerald) and his Airport Manager (Mr Beach). A union delegate (Mr Rostin) also attended, as a support person for Mr Drinkwater. Mr Drinkwater described this meeting as follows:
At the time, Matt Rostin asked Tim Fitzgerald to hand over a copy of the Policy which allowed the Department to block my movement into various x-ray facilities on the basis of the failed psychometric testing. The document that was handed to Mr Rostin was in fact, the policy relating to DGM, and made no mention of any requirement that general psychometric testing was required.
The policy clearly did not have any relationship with the roles I was applying for. The document was handed back to Tim Fitzgerald who appeared embarrassed by the mistake. He advised that he would need two days to produce a copy of the policy and two weeks to make a determination about whether I would be permitted to move into one of the x-ray facilities I had selected.
In both cases, Mr Fitzgerald failed to meet the timelines he had asked for. I have yet to be shown any policy which covers the psychometric testing in relation to non-DGM roles.[10]
[10] Exhibit A1 paras 20-22.
Mr Drinkwater’s statement was made on 17 February 2016.
After this meeting Mr Drinkwater was feeling stressed and anxious about what was happening at work as he felt that he was “being left in the dark”.[11]
[11] Exhibit A1 para 23.
On 8 October 2015 Mr Drinkwater met with Mr Beach. Again, Mr Drinkwater was told that he was going to Client Services at Customs House and again Mr Drinkwater said that he did not wish this to happen as such a position had never been on his list of preferences. During the meeting Mr Drinkwater asked Mr Beach to show him the policy which determined that he could not work on x-ray facilities by reason of his having failed the psychometric test. Mr Beach refused to do this stating that it was irrelevant.[12]
[12] Exhibit A1 paras 25-26.
Mr Drinkwater was on annual leave from 9 October 2015 until 31 October 2015. On the latter date he read a number of emails relating to his transfer to the Client Services facility at Customs House.
On 9 November 2015 Mr Drinkwater left his workplace and did not return until 16 February 2016. Dr Abi-Hanna certified him as unfit for work during this period. Comcare does not dispute that during this period Mr Drinkwater suffered from an Adjustment Disorder with anxiety and that his employment by the Department made a significant contribution to his condition.
THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) of the Act provides:
(1) Subject to this Part, [the Bank] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) to mean:
a disease suffered by an employee; or
an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Subsection 5A(2) provides:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
1.a reasonable appraisal of the employee’s performance;
a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
a reasonable suspension action in respect of the employee’s employment;
a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in section 5B:
(1) In this Act:
disease means:
2.an ailment suffered by an employee; or
3.an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
4.the duration of the employment;
the nature of, and particular tasks involved in, the employment;
any predisposition of the employee to the ailment or aggravation;
any activities of the employee not related to the employment;
any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is also defined:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).[13]
THE “ADMINISTRATIVE ACTIONS” RELIED UPON BY COMCARE
[13] Section 4(1).
Comcare argues that Mr Drinkwater’s Adjustment Disorder was suffered as a result of the following actions by the Agency and that each was “reasonable administrative action taken in a reasonable manner in respect of [Mr Drinkwater’s] employment”:
1.That the Department elected to redeploy the Applicant to a new role, pursuant to provisions under which the Department is entitled to invoke, at its election and direction, compulsory mobility processes for employees after three continuous years in a given role;
2.That the Department found the Applicant unsuitable for certain roles, based on factors such as the expiration of his qualification for x-ray technology on 19 July 2012, and steps taken to assess his suitability, such as the aptitude test for the role of International Mail Image Analyst in December 2014;
3.That the Department maintained that the Applicant’s redeployment to Client Services was suitable, despite grievances lodged by the Applicant on 12 April 2015 and to the Workplace Relations team;
4.That the Department redeployed the Applicant to Aviation Goods on 31 October 2016, pursuant to the most recent postings and deployment model applicable; and
5.Anything reasonable done in connection with the Applicant’s failure to obtain his preferred role or transfer, or to obtain or to retain a benefit, in connection with his employment.[14]
[14] Letter dated 4 April 2017 from the Respondent’s solicitors to the Applicant’s Solicitors.
Although Comcare has referred to several discrete actions, they are all part of the employer’s action in implementing its mobility process. In a situation such as this it is inappropriate to endeavour to consider each of the specified actions separately as each is inter-related to the others. The specified actions are in fact part of the continuum of action designed to move Mr Drinkwater from one position to another within the organisation.
THE ISSUES
To decide the question of whether the Adjustment Disorder with anxiety suffered by Mr Drinkwater is excluded by section 5A it is necessary to determine the following:
(a)Was the action relied upon by Comcare “administrative action taken in respect of [Mr Drinkwater’s] employment”?
(b)If so, was the administrative action “reasonable”?
(c)If so, was the action “taken in a reasonable manner”?
(d)If so, was the condition suffered by Mr Drinkwater suffered “as a result of” the administrative action?
REASONING
Issue 1: Was the action relied upon by Comcare “administrative action taken in respect of [Mr Drinkwater’s] employment”?
In Commonwealth Bank of Australia v Reeve and Another[15] the Full Court of the Federal Court said:
The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment… Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
…
Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee’s performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee’s employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1).[16]
[15] (2012) 199 FCR 463; [2012] FCAFC 21.
[16] Paras. 60 and 62.
The actions relied upon by Comcare were taken as part of the implementation of the employer’s policy to redeploy those employees who had been employed in the same positions for more than three years. They were not actions directed specifically to Mr Drinkwater; the policy was in place when he was initially employed. By way of contrast, had action been taken to redeploy Mr Drinkwater because of inadequate performance, for example, then that action would properly have been described as administrative action “in respect of” his employment.
As the Federal Court said in the judgment cited above, the specific references in section 5A(2) indicate the width of the ordinary and natural meaning of “reasonable administrative action”. Those references are to actions directed specifically to the individual employee’s employment, not to the implementation of a policy of the employer. In this case, the implementation of the mobility policy was what Justice Gray referred to as “operational action”.[17] His Honour said, in part:
As the Tribunal pointed out correctly, matters of general administration, management and implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.[18] [Emphasis added].
[17] At para.34.
[18] At para.33.
Rares and Tracey JJ also emphasised that the words “in respect of” indicated that the administrative action must be directed specifically to the employee:
…… in contrast to a disease that was contributed to by, or an injury or aggravation that arose out of, or in the course of, the employee’s employment, the exclusion in s 5A(1) applied to action taken in respect of that person’s employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.[19][Emphasis added].
[19] At para.57.
Mr Drinkwater was affected by the employer’s action because it was an ordinary feature of his work, albeit one which had not been implemented for some years. Whilst he was directly and significantly affected by the action it was not directed specifically to him. Rather, he was affected by the implementation of a policy which was applicable to all employees who had been employed in the same positions for more than three years.
The conclusion I have reached is consistent with an interpretation of the exclusionary provisions of section 5A(1) which operates “harmoniously with the preceding portion of s 5A(1) rather than eviscerative of it ….”. [20]
[20] At para. 69.
For these reasons I find that the actions relied upon by Comcare were not administrative action “taken in respect of [Mr Drinkwater’s] employment”.
Issue 2: Was the administrative action taken in respect of Mr Drinkwater’s employment “reasonable”?
Having decided that the action relied upon by Comcare was not “administrative action taken …… in respect of” Mr Drinkwater’s employment, it is not necessary that I consider the remaining issues. However, for completeness I will consider them briefly as I would have decided that Mr Drinkwater’s condition is excluded from the operation of the Act had it not been for the conclusion I have reached on the first issue.
It was argued on behalf of Mr Drinkwater that the conduct of the employer with respect to the mobility process was not reasonable for the following reasons:
·the psychometric testing was not a clearly defined pre-requisite for the relevant positions;
·the impact of failing the psychometric test was not clearly explained;
·despite his numerous requests, the employer failed to provide Mr Drinkwater with a copy of the relevant policy in respect of psychometric testing;
·the employer’s requirement that Mr Drinkwater undergo psychometric testing was an attempt to “cull” his application;
·the requirement to undergo psychometric testing was not equally applied to other co-workers.[21]
[21] Applicant's Statement of Facts, Issues and Contentions dated 2 December 2016.
I am satisfied that the implementation of the mobility policy was “reasonable” administrative action. It was a policy which had been in place for many years and Mr Drinkwater had been informed of it at the time he was employed. It was a matter of the employer’s choice that the policy had not been implemented. However, it was reasonable for the employer to take action to implement the policy to deal with fraudulent conduct by some of its employees.
The actions identified above on behalf of Mr Drinkwater appear to relate more to the manner in which the administrative action was taken rather than the nature of the action itself. However, those criticisms of the implementation of the policy do not cause me to change the view I have reached that the administrative action in implementing that policy was reasonable.
The requirement for employees to undergo psychometric testing for suitability for particular roles is a matter within the discretion of the employer, whether or not there was a written policy to this effect. The action in requiring such testing does not cease to be reasonable even if the process was not fully explained in advance.
On the evidence before me I am not satisfied that the employer attempted to “cull” Mr Drinkwater’s application or that co-workers were not treated equally. Even if these allegations had been established it would not have followed that the administrative action was not reasonable.
Issue 3: Was the administrative action taken in a “reasonable manner”?
Mr Drinkwater contended that the employer’s conduct of the mobility process was not undertaken in a reasonable manner by reason of the undue delay in its implementation. It was also put that “it is unreasonable to subject an employee to a capricious, unclear process that will have obvious ramifications, both personally and financially, when internal policies are themselves unclear.” [22]
[22] Applicant's Statement of Facts, Issues and Contentions dated 2 December 2016.
Mr Drinkwater was informed of the existence of the policy when he was employed. He was also informed when the policy was to be implemented and that he would be subject to it by reason of the time he had been employed in the Aviation Traveller Division. Prior to any action being taken which directly affected him, he was asked to set out his preferred options and to advise his employer of any special circumstances which needed to be considered.
Although Mr Drinkwater was not appointed to a position of his choice when he was first considered for redeployment, there is no evidence to suggest that he was improperly excluded from his preferred positions. It was reasonable for the employer to consider the over-all requirements of the organisation even if this meant that Mr Drinkwater’s preferences and needs could not be met.
The failure of the employer to produce a written policy stating that he could not be placed in a position involving the use of scanners without his passing a psychometric test caused Mr Drinkwater considerable distress. I am not satisfied that there was an obligation on the employer to have such a policy in writing. Even if it was a new and unwritten policy, in my view it is reasonable for the employer to determine its requirements for those employees it is considering for appointment to particular positions.
I am not satisfied that there was undue delay in the employer’s implementation of the mobility policy such as to make the manner of its implementation unreasonable. Whilst consideration of Mr Drinkwater’s redeployment took considerable time, part of the delay was caused by action taken by Mr Drinkwater to challenge decisions made by the employer. This included the lodgement of a grievance in April 2015.
The requirement is that the action be taken in a “reasonable” manner, not that it be faultless. In all of the circumstances I am satisfied that the administrative action was taken in a “reasonable manner”.
Issue 4: Was the Adjustment disorder suffered by Mr Drinkwater “as a result of” the administrative action?
When did Mr Drinkwater suffer the ailment being an Adjustment disorder?
Comcare concedes that Mr Drinkwater’s Adjustment Disorder with anxiety was contributed to by his employment to a significant degree. I am satisfied on the evidence that this is a proper concession.
On 4 April 2015 Mr Drinkwater was advised that he was to be appointed to a position in Client Services outside the airport. On 9 April 2015 he consulted his general practitioner, Dr Abi-Hanna.
In his statement accompanying his claim form[23] Mr Drinkwater said, in part:
After being told of this impending move my anxiety and stress was [sic] consuming me and I made an appointment with my doctor and discussed the situation with him as I was not sleeping and the constant worry was affecting me. He documented the issue I raised with him and he prescribed low dosage of temazapam tablets to try to help me to sleep.
[23] Exhibit R1 p.11.
On 16 December 2015[24] Dr Abi-Hanna reported, in part:
……
2. Initial consult regarding his condition was on 09/04/2015.
3. He reported symptoms of anxiety and insomnia over the preceding week, after being advised that his duties and position at work were going to be modified/moved to another area.
4. Mr Drinkwater fulfils the criteria for Anxiety disorder and Major Depression as per the DSM V criteria.
5. Mr Drinkwater has no previous history of mental illness, or any presentation here with such symptoms prior to 09/04/2015.
6. He’s been referred for psychological counselling with Lauren Adams. ……
7. Mr Drinkwater’s condition has developed in response to his employer wanting to change his current employment conditions, with a transfer to another position and site, along with loss of wages. He has been working in his current role for over a decade and the reasoning given for his rotation seems to be flawed and unjust. There were no non-employment related incidents of note.
8. The employment related instances are as specified above, with issues escalating on the 7th Nov 2015.
[24] Exhibit R1 p.139.
On the basis of the evidence of Mr Drinkwater and the report of Dr Abi-Hanna I am satisfied that Mr Drinkwater suffered the ailment of Adjustment disorder with anxiety in early April 2015 and no later than 9 April 2015. I am satisfied that his condition worsened until he ceased work in November 2015.
Would Mr Drinkwater have suffered the Adjustment disorder if the administrative action had not been taken?
In Comcare v Martin[25] the High Court considered the causal connection which is required to give rise to the operation of the exclusionary provision of section 5A(1).
[25] (2016) 258 CLR 467; [2016] HCA 43.
The Full Court said, in part:
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.[26]
[26] At para.47.
The following actions were taken by the employer prior to April 2015 as part of the mobility process:
·in June 2013 Mr Drinkwater was informed that he was part of the mobility program;
·as requested, Mr Drinkwater provided his preferred areas of employment and statement of special circumstances;
·in October 2014 Mr Drinkwater was advised of a proposed placement in International Mail;
·in December 2014 Mr Drinkwater undertook the psychometric/aptitude testing which he failed;
·in February 2015 Mr Drinkwater was again identified as subject to the mobility process and again submitted his preferences and statement of personal circumstances;
·on 4 April 2015 Mr Drinkwater was advised that he was to be placed in Client Services at a location outside the airport.
As at 9 April 2015 Mr Drinkwater remained in his position in Aviation Traveller Services.
I am satisfied that had the administrative action referred to in the preceding paragraph not been taken, Mr Drinkwater would not have suffered the ailment he did. I have reached this conclusion based on the evidence of Mr Drinkwater and Dr Abi-Hanna.
CONCLUSION
In summary, I am satisfied that none of the actions taken by the employer and which Comcare alleges caused Mr Drinkwater to suffer Adjustment disorder with anxiety were “administrative action …… in respect of” Mr Drinkwater’s employment as a Customs Officer. On this basis, the disease suffered by Mr Drinkwater was an “injury” within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Further I am satisfied that such action as was taken by the employer was reasonable and taken in a reasonable manner.
The reviewable decision, being the decision of Comcare made 22 March 2016 denying liability to compensate Mr Drinkwater in respect of Adjustment reaction with anxious mood, will be set aside.
In substitution, it will be decided that Comcare is liable to compensate Mr Drinkwater in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury being Adjustment disorder with anxiety suffered by him in April 2015.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Mr Drinkwater.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
....................................[sgd]....................................
Associate
Dated: 8 August 2017
Date(s) of hearing: 10 April 2017 Counsel for the Applicant: J Mrsic Solicitors for the Applicant: J McEnaney, Carroll & O'Dea Lawyers Counsel for the Respondent: D Dinnen Solicitors for the Respondent: M Snell, Lehmann Snell Lawyers
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