Fairall and Comcare (Compensation)

[2021] AATA 281

Fairall and Comcare (Compensation) [2021] AATA 281 (19 February 2021)

Division:GENERAL DIVISION

File Number(s):      2017/6784

Re:Laura Fairall

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:19 February 2021

Place:Sydney

The reviewable decision, being that part of the decision of Comcare made 4 October 2017 denying liability to pay compensation to Ms Fairall in respect of an adjustment disorder for a limited period on or about 22 March 2017, is affirmed.

...........................[SGD].............................................

Deputy President J W Constance

CATCHWORDS

WORKERS’ COMPENSATION – exacerbation of depression and anxiety – whether the Applicant suffered a compensable injury for a limited period – whether meeting was reasonable administrative action conducted in a reasonable manner – where Applicant refused overtime in respect of a particular period – where Applicant did not possess a relevant skill set to undertake overtime in respect of that period – where meeting was held to advise the Applicant of this decision to refuse overtime – whether the meeting was operational rather than administrative action – where meeting related to the terms of the Applicant’s engagement and her performance of the duties of her employment – where no evidence to suggest the manner in which the meeting was conducted was not reasonable – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14

CASES

Comcare v Drinkwater (2018) 260 FCR 160
Comcare v Martin (2016) 258 CLR 467
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Nguyen and Comcare [2018] AATA 1623

REASONS FOR DECISION

Deputy President J W Constance

19 February 2021

A.    INTRODUCTION

1. From 2007 until 2018 Ms Fairall was employed by Centrelink as a Client Service Representative.

2. At a meeting between Ms Fairall and her Line Manager, on 21 March 2017, Ms Fairall’s request for overtime on the following week was refused.  The reason given was that she did not have the skills necessary to perform the work required.  Ms Fairall did not return to work after that meeting

3. On 1 May 2017 Ms Fairall submitted a claim for compensation for an injury, being “exacerbation of Depression and Anxiety”, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Amongst other incidents Ms Fairall referred to the refusal of overtime as having contributed to her injury.

4. On 4 October 2017 Comcare decided to affirm an earlier decision denying liability to compensate Ms Fairall in respect of the alleged injury.  I shall refer to the decision of 4 October 2017 as the reviewable decision.

5. Ms Fairall has applied to the Tribunal to review the reviewable decision. For the reasons which follow the reviewable decision will be affirmed.

   Hearing on remittal

6. Ms Fairall’s application was heard by the Tribunal in May and July 2019 (“the initial hearing”). On that occasion evidence was taken from witnesses and documents were taken into evidence. The Tribunal published its decision and written reasons for decision on 14 January 2020.

7. Following an appeal to the Federal Court of Australia by Ms Fairall, the matter was remitted by consent to the Tribunal.   The Court ordered, in part:

   2. That part of the Tribunal’s decision, which found that the [Applicant] suffered a compensable injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) …. namely psychological injury by way of an adjustment disorder, for a limited period on or about 22 March 2017 is set aside.

   3. The matter is remitted to the Tribunal to reconsider, according to law, the issues of:

   a. whether the [Applicant] suffered a compensable injury pursuant to s 14 of the SRC Act in the form of a psychological injury by way of an adjustment disorder for a limited period on or about 22 March 2017;

   b. if so, whether [Comcare] should be ordered to pay the [Applicant’s] costs of the Tribunal proceedings in respect of the alleged psychological injury suffered by way of an adjustment disorder for a limited period on or about 22 March 2017.

   …

   5. The Tribunal’s decision is otherwise affirmed.

   B.   BACKGROUND

   Meeting of 21 March 2017

8. The parties agree that the following is an accurate record of the meeting on 21 March 2017:

   [Ms Ferguson] commenced meeting - advised purpose of meeting was to advise [the Applicant] of her decision regarding her request to access overtime. [Redacted] confirmed that HR has been consulted regarding the decision and ultimately as a decision maker the decision lies with the Smart centre.

   The decision based on the skills required by CHOPS In the Overtime offer is that [the Applicant] is unapproved based on the skills outlined in the overtime offer to process claims.

   - the claims requirements according to the department is that a participant must be proficient and able to complete all components of the claims. Based on [the Applicant’s] limitations it has been Interpreted as she does not meet the requirements of the overtime offer.

   [The Applicant’s] interpretation of the circumstance is as outlined:

   ·Up until a recent change from AYS searches to WLM she was able to complete all types of work required and exclude claims which Included Rent assistance and Shared care as components. This has meant that as a result she has only been recently completing PPL and OAP claims as these are the only she can be allocated which guarantee to not include s523 or shared care coding.

   ·[the Applicant] also has some special requirements regarding how she receives her work and due to her anxiety is unable to take on mixed work such as FTB, CCF and PPL on the same day.

   ·[the Applicant] stated that she feels unsupported in the work place in respect to her disability and felt that is she was supported for a piece of work during the week and this was acceptable it should follow on for Overtime also.

   ·[the Applicant] feels that based on the current overtime offer of being “PROFICIENT” in all families claims, is that she meets the requirements of being proficient and did not see an issue in this proficiency of having to exclude some pieces of required work.

   ·[the Applicant] also raised that she was under the impression that [redacted] would be escalating the matter regarding the system limitations for work allocation with CHOPS and OT would remain approved.

   Further discussion and outcome

   ·[Ms Ferguson] has responded advising she will look into the previous disability related requirements as determined by COMCARE

   ·[Ms Ferguson] confirmed that in the interim the decision to unapproved the overtime request for the current overtime period would still stand.

   ·[Ms Ferguson] advised that this would also been raised in further discussion with [redacted] when she is next available.

   ·[Ms Ferguson] would provide this including the means of escalation in email form.

   [The Applicant] expressed that she wished to have the email provided immediately to allow a timely review of the decision due to the time of day.

   End of meeting.

9. In her statement made 9 May 2018, Ms Fairall said that she was “very shocked at this decision which was essentially denying me the opportunity to perform overtime on the basis that I did not have all skill tags due to my reasonable adjustments.”[1]

   [1] Exhibit AA2 at [75].

10. Ms Fairall did not return to work after this meeting.  She resigned from her employment in 2018.

    C.   RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)

11. Subsection 14(1) provides:

    (1)  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.

12. Subsections 5A(1) and (2) provide:

    (1)  In this Act:

    injury means:

    (a)a disease suffered by an employee; or

    (b)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

    (c)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.  [Emphasis added].

    (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a)  a reasonable appraisal of the employee's performance;

    (b)  a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;

    (c)   a reasonable suspension action in respect of the employee's employment;

    (d)  a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;

    (e)  anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f)  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.

13. Disease is defined in section 5B:

    (1)  In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)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.

    ……….

    (3)  In this Act:

    significant degree means a degree that is substantially more than material.

    D.   ISSUES FOR DETERMINATION

14. In accordance with the orders of the Federal Court, the following issues require determination.

    (a)Did Ms Fairall suffer a compensable injury pursuant to section 14 of the Act in the form of a psychological injury by way of an adjustment disorder for a limited period on or about 22 March 2017?

    (b)if so, should Comcare be ordered to pay Ms Fairall’s costs of the Tribunal proceedings in respect of the alleged psychological injury suffered by way of an adjustment disorder for a limited period on or about 22 March 2017?

    E.    EVIDENCE AND FINDINGS OF FACT

    Evidence of Ms Fairall

15. Ms Fairall provided statements dated 9 May 2018[2] and 21 December 2018[3] and gave evidence at the initial hearing,

    [2] Exhibit AA2.

    [3] This statement was not tendered on behalf of Ms Fairall at the remittal hearing.

16. In her statement of 9 May 2018, Ms Fairall said, in part:

    On 21 March 2017 I requested a meeting with Ms Ferguson I brought a support person [redacted] and [redacted] as a minute taker. The meeting was in relation to my overtime requests for the week 21/3-27/3. I was advised by Ms Ferguson that because I did not meet the proficiency requirement of being able to complete all components of the Families and Child Care claims type therefore I was not eligible for overtime work. A copy of the minutes of the meeting prepared by [redacted] are attached and marked as “Attachment 11”.

    I was very shocked at this decision which was essentially denying me the opportunity to perform overtime on the basis that I did not have all skill tags due to my reasonable adjustments.

    I requested a formal review of this decision.

    On 28 March 2017, I received a letter from [redacted], Service Support Manager advising me that the decision not to approve me to participate in overtime at this point in time was affirmed. Further the decision stated that if I became proficient in the full range of FCC claims in the future then I could be considered for available overtime.

    This was very disheartening because I am proficient in all the claims, I am however unable to perform all the claim types due to my reasonable adjustments relating to my dyslexia and anxiety and depression. This decision therefore precluded me ever performing overtime.

17. When Ms Fairall gave evidence at the initial hearing, the following exchange took place between Ms Fairall and Counsel for Comcare concerning the meeting of 21 March 2017:

    COUNSEL: Was there anything about the way in which that meeting was conducted that you consider was not reasonable?

    APPLICANT: The meeting contributed to my mental health state being in decline. That’s all I can say about that.

    COUNSEL: Well, do you not attempt to answer my question?

    APPLICANT: I can’t say whether it was reasonable or unreasonable. What I am saying is it affected my mental health.

    COUNSEL: Certainly you make no complaint about the conduct of any person at that interview do you?

    APPLICANT: I’m saying it affected my mental health.

    COUNSEL: You keep saying that ma’am but you refuse to answer the question I am asking you?

    APPLICANT: I can’t answer it. I don’t - I can’t say whether I believe it was reasonable or unreasonable.[4]

    [4] Exhibit AA3.

18. Ms Fairall agreed that she undertook regular overtime for the financial benefit she obtained.  She had established a pattern of applying for weekend overtime whenever it was available as it assisted her financial position.[5]

    [5] Exhibit RR4.

    Evidence of Ms Ferguson, Service Support Manager

19. Ms Ferguson was Ms Fairall’s Line Manager in March 2017.  She provided a statement dated 29 May 2017.[6]

    [6] Exhibit AA1.

20. Having become aware that the Human Resources department required all staff performing overtime to be proficient in all Family and Child Care claims, prior to attending the meeting with Ms Fairall on 21 March 2017 Ms Ferguson sought advice from the department.  She advised the department that at the time Ms Fairall was undertaking only one type of claim, namely, parental leave claims.

21. Ms Ferguson stated, in part:

    The advice that I received was that it would be appropriate for me to advise Ms Fairall that in accordance with the advice from channel operations that she needs to be proficient in and able to undertake all FCC claim types to be able to undertake overtime as this is the requirement for all employees. Training should also be offered to Ms Fairall if needed for her to become proficient in all claim types.[7]

    [7] Exhibit AA1 at 55.

22. When she gave evidence at the initial hearing, Ms Ferguson said that she understood the advice from the Human Resources department (referred to in the preceding paragraph) to mean that for the week 21 to 27 March 2017 an employee had to be proficient in all areas and that was likely to be the position for the time being.  She advised Ms Fairall of this at their meeting.[8]

    [8] Exhibit AA4 at 179-180.

23. Ms Ferguson said that the skill set required for overtime varied from one week to the next and that overtime was made available to workers who did not have all skill sets on occasions.  She did not indicate to Ms Fairall that she was precluded from accessing overtime in future.  Ms Ferguson was not in a position to advise the availability of future overtime as it was dependant on the future offers which would be made week to week.[9]

    [9] Exhibit AA4 at 177.

24. Ms Fairall did not require Ms Ferguson be available for cross-examination at the hearing before me and her statement was taken into evidence with Ms Fairall’s consent.  I accept Ms Ferguson’s evidence. 

    Agency requirements concerning overtime

25. Only part of the relevant agency agreement which applied to Ms Fairall is in evidence.  It provides in part:

    F13.3  An employee may be requested to work a period of overtime. Where operational requirements dictate, the Secretary may direct an employee to work a reasonable amount of overtime on any day.

    F13.4  In requesting or directing an employee to work overtime, the Secretary will take into account the personal circumstances of the employee. An employee has a right to refuse overtime for caring or personal reasons.

    F13.5  A employee can only work overtime with the prior approval of the Secretary.[10]

    [10] Exhibit RR1.

26. The Departmental Officer who reviewed the decision to refuse Ms Fairall’s request for overtime made enquiries as to the Department’s requirements for overtime at the time.  She was advised as follows:

    ………. The current focus for overtime was for FTB New claims end to end processing. For a service officer to be undertaking overtime the focus and target is to process al FTB claims end to end and not reallocate any activities to the pool if the service officer is unable to action all components of the claim. This would include being proficient in processing rent assistance or shared care if it is associated with the claim.[11]

    [11] Exhibit RR2 at 235.

    Evidence of Mr Vardanega, Team Leader

27. Mr Vardanega was Ms Fairall’s Team Leader from November 2016 until she ceased attending her employment on 21 March 2017.  He provided a statement dated 27 November 2018.[12]

    [12] Exhibit RR3.

28. Mr Vardanega met with Ms Fairall on 2 March 2017 in response to a request by her to investigate why she was being assigned to work during overtime shifts that she was not confident to perform.  He made a file note of the meeting the same day.  A copy of the note is attachment ‘E’ to his statement.

29. Mr Vardanega’s note of the meeting reads, in part:

    During my discussion with [the Applicant] today, Thursday 02/03/17 we discussed her capabilities regarding the processing of Rent Certificates and FTB claim work and her current skillset as displayed in ESS. The purpose of the discussion as [the Applicant] was advised, was to determine what her proficiency was across the FCC claim suite of work, and what aspect of processing Rent Certificates was causing a barrier.

    When I enquired if the printing of Rent Certificates onto yellow paper rather than reading them from a white background may assist her, [the Applicant] advised that this would be of no benefit as it was the quantity and complexity of the Operational Blueprints required for Rent Certificate Processing that proved to be a barrier. [The Applicant] explained that due to her condition, the amount of reading associated with processing Rent Certificates along with the requirement to assess several different sources of information was also a potential trigger for her anxiety.

    …

    I advised that Channel Operations confirmed that as per the details on their SharePoint, Intranet pages, and Overtime offer emails, the expectation was that staff be fully FCC claim proficient and able to complete all FCC claim work in order to nominate for Overtime as Channel Operations could not confirm what type of claims would need to be processed at the time the offer was made. I explained that Channel Operations staff did advise that given the current ‘unlimited’ Overtime offer they would be willing to allow a person with these circumstances to nominate for any Overtime shifts under when they became aware that the work type on offer was outside of their scope.

    [The Applicant] advised that she believed that she did meet the overtime requirements as she is proficient in processing all FCC claim types. I confirmed that [the Applicant] currently only had PPL claim skill tags active and questioned why she did not have all FCC claim tags active if she was proficient in all FCC claim processing. [The Applicant] advised that the constant switching between work triggered her anxiety and that only operating under a single skill tag was better for her mental health.

30. Ms Fairall did not require Mr Vardanega be available for cross-examination at the hearing before me and his statement was taken into evidence with Ms Fairall’s consent.  I accept Mr Vardanega’s evidence.   

    F.    CONSIDERATION

    Issue 1: Did Ms Fairall suffer a compensable injury pursuant to section 14 of the Act in the form of a psychological injury by way of an adjustment disorder for a limited period on or about 22 March 2017?

31. Comcare concedes that the communication to Ms Fairall of the decision to refuse her overtime, which occurred at the meeting she attended on 21 March 2017, contributed to a significant degree to her suffering an adjustment disorder on or about 22 March 2017.  On the evidence I am satisfied that this is an appropriate concession.  The causal connection between Ms Fairall’s employment and her ailment is established in accordance with the principles set out by the High Court in Comcare v Martin.[13]

    [13] (2016) 258 CLR 467.

1. The questions which must be answered to decide the issue stated by the Federal Court are as follows.

   (c)Was the action of informing Ms Fairall of the decision at the meeting on 21 March 2017 “administrative action …… in respect of” Ms Fairall’s employment within the meaning of subsection 5A(1) of the Act?

   (d)If so, was the administrative action “reasonable”?

   (e)If so, was the action taken “in a reasonable manner”?

   (f)Was the action something “reasonable done in connection with …… [Ms Fairall’s] failure to obtain a …… benefit in connection with …… her employment”?

   Was the action of informing Ms Fairall of the decision at the meeting on 21 March 2017 “administrative action …… in respect of” Ms Fairall’s employment within the meaning of subsection 5A(1) of the Act?

2. There is no dispute that informing Ms Fairall of the decision was action in respect of Ms Fairall’s employment by Centrelink.  It was action taken at her workplace in working hours to discuss the work she could carry out for her employer.

3. It was argued on behalf of Ms Fairall that the making of the decision and the informing of Ms Fairall of that decision was operational, rather than administrative, action.  For the reasons which follow I do not accept this argument.

4. In Commonwealth Bank of Australia v Reeve,[14] Rares and Tracey JJ 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).[15]

   [14] (2012) 199 FCR 463.

   [15] Ibid at [60], [62].

5. In Comcare v Drinkwater[16] the Full Court considered the application of subsection 5A(1) when the action taken by an employer in respect of a particular employee is taken pursuant to a policy applicable to a group of employees. The Full Court said, in part:

   [72] A major difficulty with the argument advanced for Mr Drinkwater was that it failed to take account of the fact that the factual matrix described by the Tribunal disclosed more than one administrative action. When the Department determined to reinstate the mobility policy in 2013, it made an administrative decision about the implementation of the mobility policy. This decision did not constitute administrative action within the exclusion in s 5A(1), including because it was not action “in respect of” any particular employee’s employment. This was not, however, the administrative action that was relevant to Mr Drinkwater’s compensation claim. As we have seen, Mr Drinkwater’s case was that his disorder developed in response to the action to transfer him from his post at Sydney Airport to a different post in the Customs House. The action to transfer him from his existing post to a new post was therefore the administrative action relevant to his claim for compensation: see Re Drinkwater at [21], [26], [28]–[29] and [36]. The earlier Departmental decision to implement the mobility policy was not the relevant action because it did not give rise to the disorder for which he sought compensation.

   [73]  Furthermore, the fact that the decision to transfer Mr Drinkwater from his post at Sydney Airport to a different one in the Customs House would not have been made but for the Department’s decision to implement the mobility policy does not alter the fact that the administrative action to transfer him was made in respect of his employment. In the context of employment governed by the PS Act, it will frequently be the case that administrative action taken in respect of a particular employee’s employment will be taken under, or in furtherance of, a policy that the employer has determined is applicable to all or some of the employees in its employ.

   [16] (2018) 260 FCR 160.

6. Applying what was said in the judgements set out above, I am satisfied that the action relied upon by Comcare constitutes relevant “administrative action”.  The meeting of 21 March 2017and the discussion of the  decision to refuse Ms Fairall’s request for overtime related to the terms of Ms Fairall’s engagement and her performance of the duties of her employment.  The fact that this action was taken in furtherance of an earlier decision as to the policy applicable to the assignment of overtime does not alter the situation.

   Was the administrative action “reasonable”?

7. To meet the requirements of the exemption, the action must be “reasonable”.  This is not a standard of perfection.[17]

   [17] Re Nguyen and Comcare [2018] AATA 1623.

8. On the basis of the evidence of Ms Fairall, Mr Vardanega and Ms Ferguson I am satisfied that, by reason of Ms Fairall’s medical conditions, she was unable to carry out the full range of duties which would be required to do the work which was specified in the overtime on offer.

9. Less than three weeks before the meeting of 21 March 2017, Ms Fairall had confirmed to Mr Vardanega the limitations on her ability to carry out all of the tasks normally required of someone in her position.  She also stated that attempts to adjust the type of work she could perform would be detrimental to her health.

10. In these circumstances it was reasonable for Ms Ferguson to meet with Ms Fairall and advise her that she was not able to be allocated the overtime on offer at that particular time.  I accept Ms Ferguson’s evidence that she did not tell Ms Fairall that she would never be eligible for overtime.

    Was the action taken “in a reasonable manner”?

11. Again, the manner in which the action is taken must be “reasonable”; the Act does not require that it be faultless.

12. In Comcare v Martinez (No 2),[18] the Federal Court cited with approval the judgement of the Supreme Court of South Australia in Keen v Workers’ Rehabilitation and Compensation Corporation,[19] in which it was said:

    Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.

    [18] (2013) 212 FCR 272 at [83].

    [19] (1998) 71 SASR 42 at [47]-[48].

13. The minutes of the meeting of 21 March 2017 (reproduced in full in paragraph 8 of these reasons) show that:

    ·the purpose of the meeting was stated at the outset;

    ·the reason for the refusal of overtime was clearly explained;

    ·Ms Fairall was given the opportunity to state her position;

    ·Ms Ferguson offered Ms Fairall the opportunity to undertake additional training to assist her in gaining the skills necessary to be able to engage in the type of overtime in question.

14. On the basis of the evidence of Ms Fairall I am satisfied that she was accompanied to the meeting by a support person.

15. I take into account also that Ms Ferguson sought the advice of the Human Resources department concerning the overtime requirements before meeting with Ms Fairall.

16. There is no evidence to suggest that the manner in which the meeting was conducted, or the manner in which Ms Fairall was advised of the decision, was not reasonable.  When she gave evidence, Ms Fairall did not suggest otherwise.

17. I am satisfied that the administrative action was taken in a reasonable manner.

    Was the action something “reasonable done in connection with …… [Ms Fairall’s] failure to obtain a …… benefit in connection with …… her employment”?

18. In view of the findings I have already made it is unnecessary to consider the application of paragraph 5A(2)(f).  However, as this was addressed in the course of the hearing, for completeness I will do so.

19. As I have decided that the informing of Ms Fairall at the meeting was reasonable action and taken in a reasonable manner, the remaining issue is whether the action was in connection with Ms Fairall’s failure to obtain a benefit in connection with her employment.

20. It was argued on behalf of Ms Fairall that subsection 5A(2) paragraph (f) does not stand on its own and is to be read as an addendum to subsection 5A(1). While subsection (2) refers to subsection (1), the meaning of the words in the six paragraphs of subsection (2) are not governed by subsection (1). If, on the facts found in a particular matter, any of the paragraphs of subsection (2) are satisfied, that action is taken to be reasonable administrative action.  Subject to the remaining requirements of subsection (1) the exclusionary provision will apply.

21. The Oxford English Dictionary defines “benefit” to include “pecuniary advantage, profit, gain.”

22. Taking into account the provisions of the agency agreement and the evidence of Ms Ferguson, I am satisfied that the approval of overtime was a matter for the discretion of the Secretary and not an entitlement of the position held by Ms Fairall.  I accept Ms Fairall’s evidence that her undertaking overtime was a financial benefit to her.

23. I am satisfied that the informing of Ms Fairall at the meeting on 21 March 2017 was something “reasonable done in connection with” Ms Fairall’s failure to obtain a benefit in accordance with subsection 5A(2) paragraph (f).  For the reasons stated earlier, I am satisfied that it was taken in a reasonable manner.

    Issue 2:   Should Comcare be ordered to pay Ms Fairall’s costs of the Tribunal proceedings in respect of the alleged psychological injury suffered by way of an adjustment disorder for a limited period on or about 22 March 2017?

24. In view of my findings set out above, the answer is “no”.

    G.   CONCLUSION

25. The reviewable decision, being that part of the decision of Comcare made 4 October 2017 denying liability to pay compensation to Ms Fairall in respect of an adjustment disorder for a limited period on or about 22 March 2017, will be affirmed.

26. Comcare will not be ordered to pay the costs of these proceedings incurred in relation to the claim for payment of compensation in respect of the adjustment disorder suffered by Ms Fairall on or about 22 March 2017.

I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

................................[SGD]........................................

Associate

Dated: 19 February 2021

Date(s) of hearing:	2 October 2020
Counsel for the Applicant:	A Coombes
Solicitors for the Applicant:	M Walsh, Turner Freeman Lawyers
Counsel for the Respondent:	P Woulfe
Solicitors for the Respondent:	Su Yi Koo, Comcare