Fox and Comcare

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 204

ADMINISTRATIVE APPEALS TRIBUNAL     )

)          No 2011/0543

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SANDRA FOX

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date5 April 2012

PlaceCanberra

Decision

The decision under review is set aside and in place thereof the Tribunal decides that Sandra Fox suffered an injury for which Comcare is liable to pay compensation.

The parties have not been heard in respect to orders for costs. Submissions on this point, if any, are to be filed within 14 days from this date. If no submissions are filed, Comcare will be ordered to pay Ms Fox’s reasonable costs in these proceedings as agreed or taxed.

.......................[sgd]...................

Mr S. Webb, Member

6.      There are three essential elements to the exclusionary aspects of s 5A(1):

(a)the undertaking of administrative action in respect of the employee’s employment;

(b)the suffering of a disease, injury or aggravation as a result of the administrative action; and

(c)the reasonableness of the administrative action and the manner in which it was undertaken.

7.      Considering the submissions of the parties, and without adopting an unduly disaggregated approach, it follows that the issues to be determined are:

(a)whether one or more of these factors is administrative action taken in respect of Ms Fox’s employment; and, if so

(b)whether Ms Fox’s claimed injury was suffered as a result of or was aggravated by one or more of those actions; and for this purpose

(c)the date of Ms Fox’s claimed injury.

8.      Before considering these issues, it is necessary to set out the contextual background.

9.      In 2008, Ms Fox was employed as an Executive Level 2 (EL2) section manager in the position of Director of the Review, Analysis and Economic Section (the Evaluation Section) in the Department of Education Science and Training (DEST). Following the merger of DEST with the Department, the Evaluation Section was merged with an existing Branch of the Department, managed by Paul Volker.

10.     In 2009, the merged Department worked to implement new government policy to improve education outcomes in schools through “National Partnerships” with the States and Territories. Ms Fox was assigned duties, at the EL2 Director level,  to lead the Smarter Schools National Partnerships evaluation and reporting team in the Inclusive Education Branch (presently, the Educational Accountability and Reporting Branch), managed by Ms Phillips. Precisely when this assignment was made is not clear on the present materials. Ms Fox says that it occurred prior to June 2009.

11.     Responsibility for the Smarter Schools National Partnerships program was spread across three branches, one managed by Ms Phillips and another managed by Ms Hanlon, in the “Schools Cluster” of the Department, under one Group Manager. At the time Ms Fox transferred to her new role leading the Smarter Schools National Partnerships evaluation and reporting team, the Group Manager was Rebecca Cross. It appears that Ms Cross took up another appointment shortly thereafter and the position was not substantively filled until January 2010,…