ELIASEK and COMCARE
[2010] AATA 918
•18 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 918
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. 2006/1284 & 2008/5151
GENERAL ADMINISTRATIVE DIVISION ) Re MILLIE ELIASEK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Air Vice-Marshal Austin AM, MemberDate18 November 2010
PlaceSydney
Decision The decisions under review are affirmed. ……................[sgd]..................................
Ms N Bell, Presiding Member
CATCHWORDS – Compensation – permanent impairment - psychiatric disease – material contribution – failure to obtain a benefit – payment of overtime - flex time in lieu of a payment for overtime
Safety, Rehabilitation and Compensation Act 1988
Comcare v Mooi (1996) 42 ALD 495
Re Carpenter and Comcare (2010) 116 ALD 190
Trewin v Comcare (1998) 84 FCR 171
REASONS FOR DECISION
Ms N Bell, Senior Member
Air Vice-Marshal Austin AM, Member1. Millie Eliasek began work with the Department of Immigration and Ethnic Affairs shortly after she completed the HSC, some 36 years ago.
2. In September 2005, Ms Eliasek made a claim for compensation in relation to “depression, anxiety due to longstanding harassment in the workplace” for which she claimed she had sought treatment in July 2002. Comcare rejected this claim on the basis that Ms Eliasek had consistently raised a failure to be paid for overtime as a cause of her psychiatric condition. Comcare characterised this as a “benefit” within the meaning of the exclusionary provisions of section 4 of the Safety, Rehabilitation and Compensation Act 1988, as it then was, and concluded that Ms Eliasek did not have an “injury” within the meaning of the Act. Comcare continued with that approach in the hearing before the Tribunal.
3. Ms Eliasek also made a claim for permanent impairment in February 2008. Comcare rejected the claim on the same basis. Ms Eliasek seeks a review of both decisions by Comcare.
4. The questions for the Tribunal to consider are:
(a)Does Ms Eliasek suffer from a psychiatric disease to which her employment materially contributed?
(b)
If so, did a failure to obtain a benefit materially contribute to
Ms Eliasek’s condition?
(c)If not, does Ms Eliasek have a permanent impairment of 10% or more under the Comcare Guide to the Assessment of the Degree of Permanent Impairment?
does ms eliasek suffer from a psychiatric disease to which her employment materially contributed?
5. While there is no dispute that Ms Eliasek has a psychiatric condition, the precise diagnosis of her condition is in issue. Dr Robert Gertler diagnosed major depression while Dr Yvonne Skinner, after initially diagnosing major depression, diagnosed adjustment disorder after she was provided with additional information about Ms Eliasek’s social and other activities. Other psychiatrists, including Dr Margaret Gibson, Dr Michael Prior and Dr Fernando Roldan also diagnosed major depression.
6. The question of diagnosis may have implications for aspects of Ms Eliasek’s permanent impairment claim, but whatever the precise diagnosis all medical evidence reflects a history provided by Ms Eliasek that focuses on her employment and events in the workplace. Events at work have always been at the centre of her complaints.
7. The long history of Ms Eliasek’s claim has been consistent in this regard. She has been a prolific correspondent and the focus of her correspondence to the Department and to her treating and examining psychiatrists has consistently been a range of events at work.
8. No serious alternative scenario was presented by Comcare notwithstanding that Ms Eliasek has been described by a number of psychiatrists as having an obsessive personality.
9. We are satisfied that Ms Eliasek does suffer from a psychiatric disease and that it has been materially contributed to by her employment.
did a failure to obtain a benefit materially contribute to ms eliasek’s condition?
10. To answer this question, we must consider whether the refusal to pay overtime amounted to a failure to obtain a benefit and, if so, whether it materially contributed to her disease.
11. We note the parties’ agreement that, in the context of section 4 of the Act, as it was, any contribution by an excluding event must be material in order to exclude. We agree and follow the decision of the Tribunal in Re Carpenter and Comcare [2010] AATA 62 in this respect.
12. At the time of Ms Eliasek’s claim, section 4 of the Act excluded from the definition of “injury” any disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
was the refusal to pay overtime a failure to obtain a benefit?
13. In Comcare v Mooi (1996) 42 ALD 495 the Applicant’s failure to obtain higher duties allowance was found to be a failure to obtain a benefit and attracted the relevant exclusion. In Trewin v Comcare (1998) 84 FCR 171, a thing to be obtained as a matter of right was said to be a benefit that could fall within the exclusion.
14.
It was submitted on Ms Eliasek’s behalf that payment of overtime for work performed is a right. Ms Eliasek’s evidence was that she had been requested to perform that work and been given an assurance that the funds were there to pay for overtime. She said that the Regional Manager stated, in the presence of
Ms Eliasek’s supervisor, Kerrie Shearston, that a number of visas had to be finalised by the end of the financial year and she would ensure that overtime was available. Ms Eliasek said she considered the Regional Manager’s statement to be an effective approval of overtime and there was no need to obtain approval from her supervisor. She also referred to an instance when she was working back late to interview a person out of hours in connection with a visa that had to be dealt with by the end of financial year deadline and had a conversation with Ms Shearston who was on her way to meeting.
15. Ms Shearston said that the Regional Manager had said, in a general discussion, that if necessary overtime could be made available. She said she had asked Ms Eliasek to assess what would be needed to complete the work by the end of financial year deadline but received no advice from her. She said she would never have approved of Ms Eliasek working back alone at night. Ms Shearston said she has no idea whether Ms Eliasek did the work claimed or not.
16. Ms Shearston described the procedures employed by the Department in respect of flexitime and overtime and said it was not possible to approve overtime restrospectively. She said that Ms Eliasek never sought or obtained her approval for the overtime she claimed in the relevant period.
17.
At the hearing Ms Eliasek also gave evidence about another instance of unpaid overtime, in the same period, when she and Ms Shearston visited Nowra for an information session. Ms Eliasek said she had been required to collect
Ms Shearston at her home in a Department vehicle early on the morning of the Nowra visit, to bring the car back to the office and unload it and to stay back to complete photocopying of material on the evening before the Nowra visit. Ms Shearston could not recall the time at which Ms Eliasek collected her.
18. It was submitted for Ms Eliasek that in those circumstances of having tacit approval for the overtime, to be left unpaid for it amounts to a detriment rather than a failure to obtain a benefit.
19. However, according to Ms Shearston’s evidence performance of the work was not enough to obtain payment. There were two steps that, under the procedures of the Department, had to be taken and were not taken by Ms E: obtaining a supervisor’s express approval to work the overtime and then entering a record of the overtime having been worked. We note that Ms Eliasek had been an employee of the Department for many years and was familiar with the procedures of the Department. It was submitted for Comcare that payment for overtime does not become a “right” until these steps are taken by the employee. We agree. According to Ms Shearston’s evidence the Department had in place certain administrative procedures through which overtime could be approved after consideration of the work demands and budget capacity of the Department and, once worked, paid. We accept Ms Shearston’s evidence that she was not at liberty to approve payment of overtime without those procedures having been complied with. Her explanation of the “Nomad” computer software system underlined this and made it clear that the system would not accommodate retrospective approval of overtime worked. There was no “right” to payment without compliance with the established procedures and there was no compliance by Ms Eliasek. The payment of overtime, had it been made in those circumstances, would have been a benefit conferred outside the established procedures and requirements of the Department.
20. We note the submission made on behalf of Ms Eliasek that it is unfair for an employee to have performed necessary work and to go unpaid. However, we also note that, in view of Ms Eliasek’s failure to comply with procedural requirements and in recognition of the work she performed, Ms Shearston offered time in lieu. Ms Eliasek refused this offer and insisted, until the matter was finally resolved, on payment.
21. We conclude that, in this context, payment of overtime was a benefit.
22. In addition it was submitted for Ms Eliasek and it was her evidence that it was not the failure to be paid that she was concerned about and not that she did not receive the $120 that she considered was owing to her. Rather, it was submitted, she was concerned about the “process” involved in denying her payment. In particular, it was submitted, she was concerned about her overtime request having been refused without her having been first consulted. We note in this regard that soon after Ms Eliasek raised her concern about the overtime payment, Ms Shearston offered to recognise the work Ms Eliasek had performed by giving her time off in lieu. However, this was unacceptable to Ms Eliasek and she continued to press for payment. As was submitted for Comcare, she did not seek to have Ms Shearston reprimanded for the process she employed or to have her instructed to alter her practice, nor did she accept time in lieu as recognition of the work she had done. The outcome Ms Eliasek wanted was payment. It matters not whether she was in need of the money nor how important the sum was to her. Her reasons for wanting that particular outcome do not matter. She was, however, focused on a particular outcome – financial payment. We do not accept this as a concern with process.
did the refusal to pay overtime materially contribute to ms eliasek’s disease?
23. It was submitted for Ms Eliasek that the failure to be paid $120 for the work she had performed did not materially contribute to her psychiatric condition. Rather, it was submitted, Ms Eliasek identified the issue as one simple matter in a sea of complexity that might allow for a step in the right direction and the beginning of resolution.
24. However, the documentary evidence does not bear this out.
25. In an illness report completed by Ms Eliasek on 10 December 2001, she refers to Ms Shearston’s rejection of her overtime claims. Overtime was item 14 in the long list of 27 situations that she described in March 2004 as giving rise to her claim. In Dr Gertler’s report of 11 December 2006, he described non payment of overtime as a “principal episode” of which Ms Eliasek complained. In a statement prepared by Ms Eliasek in May 2010, she listed the failure to be paid for overtime as one of 10 instances that “really rocked me and contributed the most to my condition”.
26. Ms Eliasek said that she pursued the overtime issue with the Department at the suggestion of Dr Paul Friend, her treating psychiatrist, who had advised her to attempt to resolve one small issue as a start. In his evidence, Dr Friend said that the first time Ms Eliasek mentioned overtime to him he wrote about it in his notes. His notes reflect this occasion to be on 2 November 2004. However, this postdates the illness report and the long letter of March 2004 mentioned above. It also postdates a letter dated 23 October 2004 to a Mr David Robinson, referring to “situations 14 and 15” in her claim and asking for confirmation that she will be paid overtime for a list of dates she then sets out. We also note that the treatment Ms Eliasek was obtaining from Dr Friend was somewhat intermittent and brief. He said that he only saw her six times in 2007 and once in 2008 and that perhaps early in that period he might be said to have been treating her but after that he was not doing much. He said he did not prescribe her medication and he understood she was seeing a psychologist that he had not organised. He had no recollection of a discussion with her about identifying one issue on which one positive move could be made.
27.
Payment for overtime is also urged by Ms Eliasek in correspondence on
15 February 2005 to a Ms Rachel Ashman. On 1 March 2005, Ms Ashman made a file note of a conversation with Ms Eliasek in which she “became very upset” about the overtime issue. In a fax from Ms Eliasek to Ms Ashman on 3 March 2005, she raises the issue of overtime again and on the same date in Dr Frend’s notes it is mentioned. Similar entries appear in Ms Eliasek’s faxes or in Dr Friend’s notes until August 2005 when she was formally recredited flex time in lieu of a payment for overtime.
28. We cannot escape the conclusion that the issue of payment for overtime was of great concern to Ms Eliasek. She devoted considerable correspondence to it and, given Dr Friend’s evidence, did not do that at the urging of her psychiatrist. Ms Eliasek included it in her list of “situations” that had given rise to her claim and then did so again in her refined list in her statement of May this year.
29. We consider that the issue of payment for overtime materially contributed to Ms Eliasek’s psychiatric condition.
30. We conclude that there was a failure by Ms Eliasek to obtain a benefit in connection with her employment and that this failure materially contributed to her disease, injury or aggravation. She is thus precluded from receiving compensation from Comcare.
31.
Given this conclusion, it is not necessary for us to consider whether
Ms Eliasek has suffered a permanent impairment.
decision
32. The decisions under review are affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of MS N Bell, Senior Member and Air Vice-Marshal T Austin AM, Member
Signed: .......................[sgd]......................................................
AssociateDates of Hearing 18 & 19 August 2010
Date of Decision 18 November 2010
Counsel for the Applicant Mr Leo Grey
Solicitor for the Applicant Tom Mithieux, Carrol & O'dea Solicitors
Counsel for the Respondent Miss Rhonda HendersonSolicitor for the Respondent Ms Elena Ordiz, Australian Governement Solicitor
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