Drinkwater and Comcare (Compensation) - [2017] AATA 1228

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.
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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…

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 Drinkwater and Comcare (Compensation)

Details

AGLC: Drinkwater and Comcare (Compensation) [2017] AATA 1228
Case: [2017] AATA 1228
Decision Date: 8 August 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Drinkwater against a decision by Comcare to deny him compensation for an adjustment disorder with anxiety. Mr Drinkwater, a Customs Officer, alleged that this condition arose as a result of actions taken by his employer concerning a mobility process and his subsequent redeployment.

The primary legal issue before the court was whether the actions taken by Mr Drinkwater's employer constituted "reasonable administrative action taken in respect of the employee's employment" under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). If the actions were not administrative action, or if they were not reasonable or taken in a reasonable manner, then Mr Drinkwater's condition could be considered an "injury" for which Comcare would be liable to compensate him.

The court found that the employer's actions, including the implementation of a mobility process, the redeployment of staff, and Mr Drinkwater's unsuitability for certain roles and failure to be redeployed to his preferred area, did not amount to administrative action taken in respect of his employment. Instead, these actions were characterised as operational actions, not specifically directed at Mr Drinkwater as an individual. The court was satisfied that the actions taken were reasonable and taken in a reasonable manner.

Consequently, the court set aside Comcare's decision and substituted a new decision finding Comcare liable to compensate Mr Drinkwater for his adjustment disorder with anxiety. Comcare was ordered to pay Mr Drinkwater's costs unless an application for directions regarding costs was made within 14 days.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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