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

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

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 Fairall and Comcare (Compensation)

Details

AGLC: Fairall and Comcare (Compensation) [2021] AATA 281
Case: [2021] AATA 281
Decision Date: 19 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by Ms Fairall against a decision by Comcare to deny compensation for a psychological injury. The dispute centred on whether Ms Fairall suffered a compensable injury, specifically an adjustment disorder, on or about 22 March 2017, arising from a meeting held on 21 March 2017 concerning her request for overtime work. The case was heard by Deputy J W Constance P of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Ms Fairall suffered a compensable psychological injury pursuant to section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for a limited period on or about 22 March 2017, and if so, whether Comcare should be ordered to pay Ms Fairall’s costs of the Tribunal proceedings in respect of that alleged injury. These issues were remitted to the Tribunal by the Federal Court of Australia for reconsideration.

The Tribunal considered whether the action of informing Ms Fairall of the decision to refuse her overtime at the meeting constituted "administrative action...in respect of" her employment, and if so, whether that action was reasonable and taken in a reasonable manner. Comcare conceded that the communication of the decision contributed significantly to Ms Fairall’s adjustment disorder. The Tribunal found that informing Ms Fairall of the decision was administrative action in respect of her employment, as it related to the terms of her engagement and her duties. The Tribunal also found that there was no evidence to suggest the manner in which the meeting was conducted was unreasonable, and that the decision to deny overtime was based on operational requirements related to skill sets.

The Tribunal affirmed the reviewable decision. It found that while Comcare conceded the meeting contributed to Ms Fairall's adjustment disorder, the action of informing her of the decision was administrative action taken in a reasonable manner. Therefore, Ms Fairall did not suffer a compensable injury under section 14 of the Act in relation to this specific event.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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. BACKGROUNDMeeting of 21 March 2017 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.

Evidence

Evidence Before The Court

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 FACTEvidence of Ms Fairall 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. 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. 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.

Decision

Reasons for decision

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. 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 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. 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. BACKGROUNDMeeting of 21 March 2017 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.

Ratio Decidendi

Legal Principle Established

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. CONSIDERATIONIssue 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? 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. 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? 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. 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. 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].