Favas and Comcare (Compensation) - [2017] AATA 1317

Favas and Comcare (Compensation) [2017] AATA 1317 (17 August 2017)
Division:GENERAL DIVISION
File Number: 2015/2619
Re:George Favas
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms Regina Perton, Member
Date:17 August 2017
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Regina Perton, Member
COMPENSATION – employment by Department of Defence – major depressive disorder – alleged bullying by supervisor - whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether applicant entitled to compensation for incapacity – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A(1), 5A(2), 5B(1), 5B(2), 14(1)
CASES
Comcare v Martin (2016) 153 ALD 167
Comcare v Martinez (No 2) (2013) 212 FCR 272
Comcare v Mooi (1996) 69 FCR 439
Drenth v Comcare [2012] FCAFC 86
Lim v Comcare [2017] FCAFC 64
REASONS FOR DECISION
Regina Perton, Member
17 August 2017

Dr George Favas commenced employment with the Joint Fuels and Lubricants Agency (JFLA), Maritime Systems Division, Defence Materiel Organisation, Department of Defence (DoD), in 2012 as Chief Engineer. He lodged a claim for compensation on 18 August 2014 for a psychological condition which he described as anxiety and depression due to (a) unreasonable work demands in a hostile work environment and (b) a meeting with his supervisor on 21 March 2014 (the 21 March 2014 meeting), when he held the position of Director, HAZCHEM (dealing with hazard remediation relating to fuels and lubricants).
On 18 November 2014 Dr Favas’ claim was refused by Comcare. Comcare found that his condition of adjustment reaction with disturbance of emotions was significantly contributed to by his employment but had arisen from reasonable administrative action taken in a reasonable manner by the JFLA. Dr Favas sought internal review of the decision. On 7 April 2015 the Comcare reconsideration delegate affirmed the decision. On 28 May 2015 Dr Favas sought review of that decision by the Tribunal.
LEGISLATIVE BACKGROUND
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) states:
Compensation for injuries
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
...
Section 5A of the SRC Act states:
Definition of injury
(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…

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 Favas and Comcare (Compensation)

Details

AGLC: Favas and Comcare (Compensation) [2017] AATA 1317
Case: [2017] AATA 1317
Decision Date: 17 August 2017

CaseChat Overview and Summary

This matter concerned an appeal by Dr Favas to the Administrative Appeals Tribunal (the Tribunal) following Comcare's refusal of his claim for compensation. Comcare had determined that Dr Favas' condition, described as an adjustment reaction with disturbance of emotions, was significantly contributed to by his employment but had arisen from reasonable administrative action taken in a reasonable manner by the JFLA. Comcare's decision was affirmed on internal review, leading to Dr Favas' application to the Tribunal.

The central legal issue before the Tribunal was whether Dr Favas' medical condition constituted an "injury" as defined by the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Specifically, the Tribunal had to determine if the condition arose from reasonable administrative action taken in a reasonable manner, which would exclude it from the definition of injury under section 5A(1) of the SRC Act. This required an assessment of the nature of the administrative action and the manner in which it was implemented.

The Tribunal considered the evidence regarding a meeting held on 21 March 2014 between Dr Favas and Colonel Harnwell. The Tribunal accepted Colonel Harnwell's evidence that the meeting was arranged to discuss Dr Favas' performance agreement and potential alternative employment options due to significant changes within the JFLA. The Tribunal found that the meeting was appropriately arranged, with adequate notice given, and that the discussion of Dr Favas' performance agreement was suitable in the circumstances. Applying the principles from *Comcare v Martinez (No 2)*, the Tribunal concluded that the administrative action, namely the 21 March 2014 meeting, was taken in a reasonable manner.

Consequently, the Tribunal found that the exclusion in section 5A(1) of the SRC Act applied. Dr Favas' medical condition did not fall within the definition of an injury under the Act, and he was therefore not entitled to compensation. The Tribunal affirmed Comcare's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 18 November 2014 Dr Favas’ claim was refused by Comcare. Comcare found that his condition of adjustment reaction with disturbance of emotions was significantly contributed to by his employment but had arisen from reasonable administrative action taken in a reasonable manner by the JFLA. Dr Favas sought internal review of the decision. On 7 April 2015 the Comcare reconsideration delegate affirmed the decision. On 28 May 2015 Dr Favas sought review of that decision by the Tribunal.LEGISLATIVE BACKGROUND Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) states:Compensation for injuriesSubject 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... Section 5A of the SRC Act states:Definition of injury(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.(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. Section 5B of the SRC Act states:Definition of disease(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.(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:(a) the duration of the employment;(b) the nature of, and particular tasks involved in, the employment;(c) any predisposition of the employee to the ailment or aggravation;(d) any activities of the employee not related to the employment;(e) any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.(3) In this Act:significant degree means a degree that is substantially more than material

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For these reasons the Tribunal concludes that the reasonable administrative action in the form of the 21 March 2014 meeting was taken in a reasonable manner in respect of Dr Favas’ employment. Consequently the exclusion in s 5A(1) of the SRC Act applies, and Dr Favas’ medical condition does not come within the definition of injury in the SRC Act, and he is not entitled to compensation.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Colonel Harnwell said that in response to his email, Dr Favas sent his performance agreement on 18 March 2014. Colonel Harnwell stated that he proposed to discuss the planning for the significant change to the JFLA that was under consideration, including an end to the HAZCHEM role at the end of 2014; and for that reason, he provided Dr Favas with information about other positions that might be of interest to him. On 20 March 2014 there was an email exchange about the time of the meeting, and Colonel Harnwell accommodated Dr Favas’ wishes by arranging the meeting to suit Dr Favas, and offering the option of meeting over coffee or lunch. Consideration The Tribunal accepts Colonel Harnwell’s evidence that he conducted regular meetings in Melbourne with senior staff to discuss relevant issues, and that on 17 March 2014 he arranged the 21 March 2014 meeting with Dr Favas to discuss Dr Favas’ performance agreement. In his email of 17 March 2014 Colonel Harnwell also referred to the possibility of Dr Favas considering alternate employment options in the event of a transfer of the Chief Engineer position to a military-designated position. In reply, Dr Favas agreed to the meeting and on 18 March 2014 sent his performance agreement to Colonel Harnwell. In the circumstances, the Tribunal finds that the meeting was arranged for the purpose outlined by Colonel Harnwell and that the proposed discussion of Dr Favas’ performance agreement was appropriate. As a regular informal discussion and meeting there was nothing unusual about its arrangements or location in Dr Favas’ office, and adequate notice had been given. For these reasons the Tribunal finds that the 21 March 2014 meeting constitutes reasonable administrative action as defined in s 5A(2)(b) and (e) of the SRC Act. Was the reasonable administrative action taken in a reasonable manner? In Comcare v Martinez (No 2) (2013) 212 FCR 272 the Federal Court considered the circumstances in which an administrative action is taken in a reasonable manner for the purposes of s 5A of the SRC Act. Robertson J said:[72] It will be recalled that the Tribunal said that the [Comcare guideline on bullying] said that “whether intended or not if, objectively, the effect of action by a supervisor is to humiliate, offend or distress an employee and that this ‘should reasonably have been expected’, it amounts to bullying” and to bully someone is not to conduct administrative action in a reasonable manner.[73] However, in my opinion, the impact on the employee cannot of or by itself establish whether or not administrative action was taken in a reasonable manner within the meaning of s 5A(1) ……[82]…I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.[83] I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42; at 47-48 where his Honour said, in a context much closer to the present legislation: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.