Eames and Comcare
[2006] AATA 1052
•7 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1052
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/149
GENERAL ADMINISTRATIVE DIVISION ) Re REBECCA EAMES Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date 7 December 2006
Place Canberra
Decision 1) The decision of Comcare made 8 April 2005 affirming the decision to deny liability for Ms Eames’ claim for compensation is set aside and in substitution it is decided that:
(a) Comcare is liable to pay compensation to Ms Eames in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury of an anxiety state or alternatively, the injury of the aggravation of an anxiety state, suffered by her on 14 November 2004;
(b) from April 2005 until the date of this decision Ms Eames did not suffer from the effects of either or both of the above-mentioned injuries.
2) Each party has liberty to apply concerning the costs of this application within 21 days of the date of this decision, provided that should no such application be made, Comcare shall pay the costs of these proceedings incurred by Ms Eames.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Anxiety disorder – Whether condition outside normal range of functioning and behaviour – Whether reasonable disciplinary action – Whether disciplinary process accorded procedural fairness.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14
Comcare v Mooi (1996) 69 FCR 439
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Re Inglis and Comcare (AAT 12155, 27 August 1997)
REASONS FOR DECISION
7 December 2006 J.W. Constance, Senior Member INTRODUCTION
1. During 2004 an unfortunate situation developed in Ms Eames’ workplace which ultimately brought her to this Tribunal. Ms Eames’ claim for compensation in respect of an injury she claims to have suffered as a result of that situation has been rejected by Comcare. For the reasons which follow I have decided that Comcare's decision should be set aside and in substitution it be decided that Comcare is liable to pay compensation in respect of the injury.
EVIDENCE AND FINDINGS OF FACT
2. Unless otherwise stated I make the following findings of fact based on the evidence of Ms Eames. I am satisfied of these facts found on the balance of probabilities.
3. In 2004 Ms Eames was employed as a Seminar Coordinator in the Research Section of the Department of the Senate and had been employed in that position for the previous six years. Until 2004 she regarded her workplace as a happy and cheerful one in which she enjoyed working. In March 2004 Ms Loes Slattery joined the Research Section. Ms Slattery held a position senior to that held by Ms Eames.
4. Initially, Ms Eames and Ms Slattery had limited contact, but as time went on there were more occasions on which they were required to work together. For reasons which are not relevant to the decision in this matter the relationship between Ms Eames and Ms Slattery deteriorated to the point that they communicated concerning their work through a supervisor, Mr Hooper. This means of communication between members of a working team continued for several weeks, apparently condoned by management. On a number of occasions Ms Eames spoke to Mr Hooper concerning the deterioration of her relationship with Ms Slattery and requested a mediation to endeavour to resolve the differences. On at least one occasion Ms Eames asked Mr Hooper if he had spoken to the Clerk Assistant, Mr Elliott, to inquire whether he had any suggestions to help resolve the situation. Mr Hooper told Ms Eames that Mr Elliott's response had been "it's a management problem, you're the manager, manage it".[1]
[1] Exhibit R4.
5. On Friday 12 November 2004 there was an altercation between Ms Eames and Ms Slattery. The altercation began at Ms Eames’ desk but continued when Ms Eames moved away from her desk and was followed by Ms Slattery. When Ms Eames returned to her desk still followed by Ms Slattery, Ms Eames raised her hands indicating to Ms Slattery that she wished her to stop speaking to her. Ms Eames felt that she was unable to escape from Ms Slattery and began to feel panicked. It was a similar feeling to that she had experienced when working in enclosed areas. Ms Eames had previously been diagnosed as suffering from claustrophobia and had sought medical help in relation to the condition. Her employer was aware of this. On a number of occasions during this altercation Ms Slattery told Ms Eames that she was unprofessional. The altercation ended when Ms Eames told Ms Slattery that she was "a fucking pest". Ms Eames then left the office for about ten minutes to compose herself.
6. Upon returning to the office Ms Eames spoke to Mr Elliott for about 40
minutes and told him of the incident with Ms Slattery. She informed him of the background to the conflict between them and that she had, on numerous occasions, asked for help to resolve the situation. Ms Eames explained to Mr Elliott that she suffered from panic attacks and that the incident with Ms Slattery had caused her to suffer such an attack. Mr Elliott appeared sympathetic to Ms Eames and told her he would manage the situation and bring about some resolution of the conflict.
7. By the time Ms Eames returned to work the following Monday, 15 November 2004, she had decided to resign from her position and seek other employment. She reached this decision as a result of the events of the previous Friday and the earlier difficulties she had experienced with Ms Slattery. During the morning she met Mr Elliott in the corridor and informed him she intended to apply for another position and that she proposed to put forward his name as a referee. Mr Elliott then asked Ms Eames to come into his office, which she did. A conversation followed during which Mr Elliott told Ms Eames quite emphatically that he would not give her a reference until she apologised to Ms Slattery. Ms Eames raised the issue of the previous disharmony between herself and Ms Slattery and what she perceived to be a lack of action by management in response to her request for assistance. Mr Elliott again informed Ms Eames that she would apologise to Ms Slattery. Ms Eames said that Mr Elliott was holding her reputation and her good work record over six years to ransom and that she was entitled to a reference. When Ms Eames asked "you're not going to give me one until I do what you tell me I have to do and apologise to [Ms Slattery]?" Mr Elliott replied "yes".[2] Ms Eames informed Mr Elliott that she would apologise to Ms Slattery for using the word "fucking" as she acknowledged that this was not appropriate language for the workplace. She told Mr Elliott that she would not offer a complete apology to Ms Slattery.
[2] Transcript of Proceedings, 1 May 2006, p. 27.
8. When he gave evidence, Mr Elliott described Ms Eames’ evidence as to the conversation as "a nice reconstruction after the event".[3] I prefer Ms Eames’ evidence as to what happened in the conversation between Mr Elliott and herself for a number of reasons. First, Mr Elliott said that when Ms Eames told him she intended to apply for another position and she was seeking a reference from him, he believed this request was "totally unrelated to what had happened on the previous Friday". He also said that he believed Ms Eames was referring to a request for a reference she had made to him eight or nine months before.[4] In view of the events of the previous Friday I find this explanation inherently unlikely. Secondly, Mr Elliott told me that Ms Eames did not speak to him concerning the problem with Ms Slattery during the conversation as he would not have talked about another officer without the other officer being present. [5] This statement is totally inconsistent with evidence given earlier by Mr Elliott that on the previous Friday he had had a lengthy conversation with Ms Eames concerning the problems she was having with Ms Slattery and Ms Slattery was not present.[6]
[3] Transcript of Proceedings, 13 September 2006, p. 52.
[4] Transcript of Proceedings, 13 September 2006, p. 59.
[5] Transcript of Proceedings, 13 September 2006, p. 52.
[6] Transcript of Proceedings, 13 September 2006, p. 53.
9. Ms Eames described her feelings immediately after her conversation with Mr Elliott as:
“Absolutely outraged and let down and hurt and angry and bemused, I could not -- I felt like I'd wandered into some sort of play or something and I had no script. I didn't know what was happening. I couldn't believe that this situation had gone so pear-shaped and no one was fixing it and all of a sudden I had the big black cross next to my name, I was wearing a black hat and it was just -- it was appalling, it was just dreadful." [7]
[7] Transcript of Proceedings, 1 May 2006, pp 27-28.
10. Immediately following the meeting with Mr Elliott, Ms Eames apologised to Ms Slattery for the use of inappropriate language. Ms Eames gave evidence that she said:
“Loes, apparently I have to apologise to you for what happened. I’m not going to. I’m not sorry. I am sorry, however, for the use of the word fucking, I should not have used the word fucking and I’m really really sorry for the word fucking. I’m not sorry for anything else because you are a pest.” [8]
[8] Transcript of Proceedings, 1 May 2006, p. 28.
11. In a statement made on 3 December 2004 [9] Ms Slattery said that Ms Eames "apparently marched" Mr Hooper to where she was seated, stood over her and broadcast to all at the top of her voice that "I have been asked to apologise to that fucking bitch". In evidence, Ms Slattery said to the best of her recollection Ms Eames said (apparently to Mr Hooper) "you want me to apologise to that bitch".[10]
[9] Exhibit R28.
[10] Transcript of Proceedings, 14 September 2006, p. 76.
12. I prefer the evidence of Ms Eames and I am satisfied that she did apologise for the use of the inappropriate language. In the report of his investigation into the matter,[11] to which I will refer later, Mr Curtis found that “Ms Eames then leaned close to Ms Slattery and said words to the effect of: ‘Apparently I have to apologise to you Loes. I will apologise for the use of the word "fuck". I should not have used the word "fuck". But you are still a pest.’" This finding was made after Mr Curtis had interviewed a number of witnesses, including Ms Slattery. He accepted that Ms Eames may have intended her statement as a sincere apology. On no sensible interpretation could either of the statements attributed to Ms Eames by Ms Slattery be said to be an apology. Further, had Ms Eames spoken to Ms Slattery in the manner Ms Slattery described, it would have been heard by a number of other people in the vicinity.
[11] Exhibit R26.
13. Apart from Mr Hooper, there were no witnesses called to confirm Ms Slattery's version. Mr Hooper gave evidence that Ms Eames said to Ms Slattery that she had been told to apologise to her and that she was now withdrawing the comment that she was "a fucking pest", but that she [Ms Slattery] was still a pest.[12] Although Mr Hooper said that Ms Eames spoke in a very loud, angry and hostile voice this evidence corroborates Ms Eames’ version rather than that given by Ms Slattery.
[12] Transcript of Proceedings, 14 September 2006, p. 48.
14. Ms Eames then spoke to Ms Gordon, the Human Resources Manager, and informed her of the altercation with Ms Slattery and the events surrounding it. Ms Eames left the office and went home at around midday as she felt unwell. In giving evidence, she described how she felt as follows:
“I felt devastated that I couldn't seem -- I didn't seem to be talking the same language as everyone else, that really worried me, that I couldn't manage to sort it out, that here was I having dreadful crying discussions with the program manager and with the head of HR and it just all seemed so surreal and not the sort of thing that happened to me and I felt upset and I couldn't stop crying, I could not stop crying, I do remember that. My throat was sore, my eyes were sore, my head was throbbing and I just went home." [13]
[13] Transcript of Proceedings, 1 May 2006, p. 29.
I accept this evidence.
15. The following day Ms Eames consulted her general practitioner, Dr Wessell. Ms Eames said that when she consulted Dr Wessell she "couldn't stop crying and I was telling her what had happened and I was outraged and I was hurt and that I had felt that I was worth support and empathy and had got neither of those things and that I just -- I just couldn't face going back there." [14]
I accept this as an accurate statement of how Ms Eames was feeling at the time.
[14] Transcript of Proceedings, 1 May 2006, p. 29.
16. On 1 December 2004 Ms Eames returned to work. On the same day Ms Griffiths, Usher of the Black Rod, appointed Mr Curtis, an officer of the Department of the Senate, to investigate possible breaches of the Parliamentary Service Code of Conduct by Ms Eames. Ms Griffiths notified Ms Eames of the appointment of Mr Curtis and of the investigation.[15] The only information provided to Ms Eames as to the conduct being investigated was that "the possible breaches relate to two alleged incidents (12 and 15 November 2004) of abusive language and threatening behaviour toward a departmental staff member, Ms Loes Slattery." [16]
[15] Exhibit R36.
[16] Exhibit R36.
17. I am satisfied on the balance of probabilities that the investigative process was commenced because Ms Eames refused to give an apology to Ms Slattery in the form requested by Mr Elliott, and not because of the language used by Ms Eames. The language used was clearly inappropriate in the workplace and Ms Eames acknowledged this. In giving evidence Mr Elliott expressed the view that;
"As far as I could see, this was a storm in a teacup. People get upset on a Friday, there is a bit of rough and tumble language, and then on Monday, there’s -- people have thought about it, routine apology...... was how I saw it developing on the Friday." [17]
[17] Transcript of Proceedings, 13 September 2006, p. 44.
Mr Elliott saw the apology as an essential issue. [18]
[18] Transcript of Proceedings, 13 September 2006, p. 54.
18. By e-mail of 2 December 2004 Ms Eames requested Mr Curtis provide her with a copy of the allegations. She also advised Mr Curtis of the difficulties she was experiencing in obtaining documentation relating to the matter. On the same day Mr Curtis replied simply repeating the statement in the letter from Ms Griffiths and advising Ms Eames and that:
“Prior to having any formal discussion with you, I will make sure that you have all the relevant evidence. However, at this stage I'm not aware of any documents beyond the letter you received from Andrea Griffiths, and a letter I received from Andrea appointing me as investigating officer." [19]
[19] Exhibit R27.
19. On 3 December 2004 Ms Eames sent another e-mail to Mr Curtis, which read in part:
“I am all at sea as to what "abusive language" and “threatening behaviour" I am supposedly guilty of. Offensive language, if one swear word is constituted as such, I guess I had to put my hand up to. Abusive language? Is that the same thing? I don't think I have ever verbally abused anyone in my life and as the threatening behaviour -- well to whom? And how? And when? Do you see my problem?......... I am in a total fog, and cannot for the life of me think of anything I have done it could possibly be construed as “ threatening behaviour", so I need to see what description whoever has initiated this has used before I could even have even the faintest idea of how to contest it." [20]
[20] Exhibit R27.
20. Notwithstanding what he said in his e-mail of 2 December 2004 and despite the requests by Ms Eames, Mr Curtis interviewed Ms Eames on 7 December 2004 without providing her with the evidence he then had before him, which included a number of statements of witnesses, including Ms Slattery, Ms Blunden, Mr Elliott, Mr Hooper, Mr Sullivan and Ms Gordon.
21. On 15 December 2004 Mr Curtis forwarded a written report of his investigation to Ms Griffiths. The various witness statements referred to in that report were attached to it. On the same day he forwarded a copy of the report,
without the witness statements, to Ms Eames by e-mail. The finding of Mr Curtis was that Ms Eames was guilty of misconduct on both occasions in that she had failed to abide by the Parliamentary Service Values. He expressed the view that the sanction must take into account a number of mitigating factors and recommended a reprimand.
22. It is of concern that in a statement signed by Mr Curtis on 17 July 2006 and filed in the Tribunal he stated that "I cannot recall whether I showed Ms Eames a copy of the records of conversations with the people I had interviewed" [21] when he met with Ms Eames on 7 December 2004 to formally discuss the allegations. Having observed and listened to Mr Curtis give sworn evidence in the witness box [22] I am satisfied that at all times he was aware that he had not provided copies of the records of conversation to Ms Eames and that his written statement to the Tribunal was misleading. For reasons which are not apparent to me, the Department of the Senate through its officers, both prior to and during the investigation, determined not to provide Ms Eames with all of the information which was available and which directly concerned her and her future career.
[21] Exhibit R27.
[22] Transcript of Proceedings, 14 September 2006, pp 17-18.
23. On 13 December 2004 Ms Eames lodged the claim for compensation which is the subject of these proceedings. Ms Eames stated that she suffered from the condition of anxiety disorder and that she was injured or first noticed that she was ill on 12 November 2004.
24. Having received the report without the statements to which it refers, Ms Eames again requested Ms Griffiths to provide her with copies of the statements. This request was made by letter of 20 December 2004.[23] By letter of 18 January 2005 Ms Griffiths refused Ms Eames’ request. In the same letter Ms Griffiths advised Ms Eames that after 2 February 2005, and having considered any mitigating comments that Ms Eames may provide, she would advise Mr Eames of her determination on the sanction to be imposed.[24] At no time, either before or after 2 February 2005, was a sanction imposed on Ms Eames consequent upon the finding of Mr Curtis. The process was never finalised.[25]
[23] Exhibit R6.
[24] Exhibit R7.
[25] Transcript of Proceedings, 13 September 2006, p. 9.
25. In an e-mail to Mr Hooper on 20 January 2005 Ms Eames stated that she found Mr Elliott "incredibly intimidating and threatening. He terrifies me……. I am advising you that, with the best will in the world, I cannot avoid feeling trapped by the thought of having to spend time with Cleaver, from DAY 1 of my return...... I feel panicked at the very idea of it, and I haven't even returned yet. My situation at present is extremely close to a panic attack, so I don't know how am going to cope on Monday." [26]
Counsel for Comcare stated that this evidence was not challenged and I accept it as an accurate statement of Ms Eames’ state of mind at the time she wrote the e-mail and at the time she lodged the claim for compensation.
[26] Exhibit R10.
Medical Evidence
26. Dr Wessell has been Ms Eames’ general practitioner since November 2003. Dr Wessell provided a report dated 14 March 2006[27] and gave evidence. Ms Eames consulted her seven times between 16 November 2004 and 24 February 2005 inclusive. All those consultations related to the events in her workplace. Dr Wessell reported that:
“On every occasion she showed evidence of great emotional distress with pressure of speech, compulsion to talk over the problem for long periods, and always teariness as she went over the events. She gave a history of sleep disturbance with an inability to sleep for thinking over the events and conversations, and of real anxiety symptoms of palpitations, sweats and simple fear at the thought of even entering the building where she worked."
[27] Exhibit A4.
27. Following examinations on 16 November 2004 and 7 December 2004 Dr Wessell diagnosed Ms Eames as suffering from anxiety disorder caused by the events at work involving Ms Slattery.[28] Dr Wessell gave evidence that when she saw Ms Eames she was acutely distressed and in her opinion Ms Eames was not thinking straight. It was also her opinion that, when Ms Eames consulted her in January 2005, Ms Eames’ condition was having an effect on her ability to make decisions and "she was very, very distressed and she wasn't able to function. I had to give her time off work because she couldn't go to work..... She just wasn't in a position where she could go to work and carry out her normal job, her normal tasks, because she was not able to think straight." [29]
[28] Exhibit A5
[29] Transcript of Proceedings, 12 September 2006, p. 84.
28. Dr Lewin, Consultant Psychiatrist, provided a report dated 23 September 2005[30] and gave evidence. Dr Lewin examined Ms Eames at the request of Comcare’s solicitors on 22 September 2005. This was after Ms Eames had ceased employment with the Department of Senate and commenced her new position. In Dr Lewin's opinion, Ms Eames suffers from a lifelong anxiety disorder which was in remission at the time of his examination. He described this as a psychiatric condition. In his opinion Ms Eames was angry and outraged as a result of the events of November 2004 and January 2005. He described anger and outrage as normal human responses and was of the opinion that the events in the workplace did not give rise to any significant change in the psychiatric condition. In his view Ms Eames functioned normally throughout the entire period.
[30] Exhibit R2.
29. Although Dr Lewin is a consultant psychiatrist and Dr Wessell is not so qualified, I prefer the evidence of Dr Wessell as to Ms Eames’ condition and the causal effect of the events in the workplace. Dr Wessell has considerable experience in psychiatry and has attended a lot of psychiatric meetings. At the time she gave evidence, her psychiatric experience was about to be recognised by the College of General Practitioners. Dr Wessell had the advantage of several consultations with Ms Eames at the time of the events which caused her distress and was able to assess her while she in a distressed state. Dr Wessell made the assessment that Ms Eames was unable to function properly during the period following the events of November 2004 and her ability to make decisions was affected. On the other hand, Dr Lewin did not have the advantage of assessing Ms Eames at the time of the events which affected her. In addition, he does not appear to have taken into account (perhaps because he was unaware of it) that in January 2005 Ms Eames was feeling trapped and panicked by the thought of spending time with Mr Elliott and that the prospects of her returning to work at that time put her in a situation of being "extremely close to a panic attack".[31]
[31] Exhibit R10.
STATUTORY BACKGROUND
30. Sub-section 14(1) of the Act provides:
"Subject to this Part, Comcare 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 section 4 of the Act. The relevant provisions of that definition are:
(a) a disease suffered by an employee;
……………..
but does not include any such disease.........suffered by an
employee as a result of reasonable disciplinary action taken
against the employee…...”
Sub-section 4(1) also contains the following definition of disease:
"disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a
material degree by the employee’s employment by the
Commonwealth or a licensed corporation."
THE ISSUES
31. The issue between the parties is whether Ms Eames suffered an injury such as to entitle her to compensation in accordance with the provisions of section 14. In order to decide this issue it is necessary to determine two subsidiary issues, namely:
1) has Ms Eames suffered an ailment or an aggravation of an ailment that was contributed to in a material degree by her employment; and
2) if so, was the disease suffered by Ms Eames suffered as a result of reasonable disciplinary action taken against her?
DETERMINATION OF THE ISSUES
Has Ms Eames suffered an ailment or an aggravation of an ailment that was contributed to in a material degree by her employment?
32. Following the oft-quoted decision of the Federal Court in Comcare v Mooi (1996) 69 FCR 439 it is clear that to establish the existence of an ailment, and therefore a disease, a worker must establish the existence of “a condition that is outside the boundaries of normal mental functioning and behaviour.” [32] However, it is not necessary that the condition be identified with the label of a recognised medical condition. The Federal Court accepted that the distinction drawn by a treating psychiatrist between “clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons and affected by mental disease or illness could be expected to exhibit in those same circumstances....." [33]
[32] At p. 444.
[33] At p. 444.
33. On the basis of the evidence of Dr Wessell I am satisfied that Ms Eames’ condition was outside the boundaries of normal mental functioning and behaviour and clearly abnormal behaviour in her circumstances. Whilst I accept that Ms Eames suffered anger and outrage, it is not within the bounds of normal behaviour
that anger and outrage cause a person to be unable to go to work for some weeks, to develop a fear of a particular individual and to develop a fear of returning to his or her place of employment. I also take into account the evidence of Dr Wessell that at times Ms Eames was so distressed as to be unable to think clearly and to properly make decisions.
34. I am satisfied on the balance of probabilities that Ms Eames suffered an ailment within the meaning of the Act. Alternatively, I am satisfied that Ms Eames suffered an aggravation of a pre-existing ailment, being an exacerbation of her anxiety. I make this finding on the basis of the evidence of Dr Wessell to which I have previously referred. It has not been argued that if Ms Eames suffered an ailment such as I have found, that the ailment was not contributed to in a material degree by her employment by the Department of the Senate and I find accordingly. I am satisfied therefore that Ms Eames has suffered a disease within the meaning of the Act.
35. On the basis of the evidence of Dr Wessell, I am satisfied on the balance of probabilities that Ms Eames suffered the disease on 14 November 2004 and that she continued to suffer the effects of that disease until April 2005 when she commenced her new employment. I am not satisfied that Ms Eames has suffered from the effects of the disease from April 2005 until the date of this decision.
Was the disease suffered by Ms Eames suffered as a result of reasonable disciplinary action taken against her?
36. “In the context of the definition of "injury" in s 4(1) of the Act, the phrase "disciplinary action" means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline...... What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition..... Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of "disciplinary action" in the Act."
-- Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 at 83 and 84.
37. The Department of the Senate’s Procedures for Determining Breaches of the Parliamentary Service Code of Conduct [34] provides for the Usher of the Black Rod to appoint an investigator to determine whether the employee has breached the Code of Conduct and for the investigator to report the findings to the Usher of the Black Rod. The document goes on to provide that “[h]aving considered any mitigating comments from the employee, the delegate will determine the case and inform the employee in writing of the determination, any sanction imposed, the reasons for them, and the employee's rights of review." [35] The document provides for a number of sanctions for breach of the Code of Conduct ranging from a reprimand to termination of employment.
[34] Exhibit R35.
[35] Exhibit R35, p. 3.
38. On the 31 January 2005 Ms Eames wrote to Ms Griffiths setting out several matters which she wished to be taken into account in relation to the findings against her.[36] On 2 February 2005 Ms Griffiths acknowledged receipt of the letter and advised Ms Eames that no further action would be taken until Ms Eames returned to work.[37] In fact, no further action was taken pursuant to the findings made by Mr Curtis.
[36] Exhibit R8.
[37] Exhibit R35.
39. In the above circumstances I am satisfied that there was no disciplinary action against Ms Eames. Taking into account the Senate's own procedures it is clear that the process did not go beyond an investigation and reporting of findings to the Usher of the Black Rod and the disciplinary action envisaged by the Procedures document did not take place.
40. Even if the process had reached the disciplinary action stage I am satisfied that such a process would not have been "reasonable disciplinary action". One of the requirements of reasonable disciplinary action is that it be fair: Re Inglis and Comcare (AAT 12155, 27 August 1997). The Senate's Procedure provides for allegations to be dealt with having due regard to procedural fairness.
41. In failing to provide Ms Eames with a precise statement of the allegations against her before she was interviewed, in failing to provide her with copies of the statements upon which Mr Curtis made his findings and in again failing to provide copies of the statements as part of the findings to which Ms Eames was asked to respond, the Department of the Senate failed to afford Ms Eames basic procedural fairness. The reasons offered by Mr Curtis, namely that "it was a busy sitting week" and that he did not have the statements in a form suitable to attach to an e-mail to Ms Eames, are totally unacceptable.
42. As I am satisfied that Ms Eames suffered an injury, not being an injury suffered as a result of reasonable disciplinary action, I am satisfied that Ms Eames is entitled to compensation in accordance with section 14 of the Act. It is not in issue that the injury has resulted in incapacity for work and impairment.
DECISION
43. The decision of Comcare made 8 April 2005 affirming the decision to deny liability for Ms Eames’ claim for compensation is set aside and in substitution it is decided that:
(a) Comcare is liable to pay compensation to Ms Eames in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury of an anxiety state or alternatively, the injury of the aggravation of an anxiety state, suffered by her on 14 November 2004;
(b) from April 2005 until the date of this decision Ms Eames did not suffer from the effects of either or both of the above-mentioned injuries.
44. Each party has liberty to apply concerning the costs of this application within 21 days of the date of this decision, provided that should no such application be made, Comcare shall pay the costs of these proceedings incurred by Ms Eames.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 1 May, 12-14 September, 2 November 2006
Date of Decision 7 December 2006
Counsel for the Applicant Mr W Sharwood
Solicitor for the Applicant Pamela Coward & Associates
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent DLA Phillips Fox
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