Galanis and Comcare (Compensation) [2018] AATA 486 (14 March 2018)
Division:GENERAL DIVISION
File Number(s): 2015/6795
Re:George Galanis
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:14 March 2018
Place:Melbourne
The Tribunal sets aside the reviewable decision and in substitution, decides that Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay compensation to the Applicant in respect of his claimed injury.
[sgd]........................................................................
Member K. Parker
COMPENSATION – adjustment disorder with predominate features of anxiety – ailment – whether contributed to, to a significant degree, by the employee’s employment – disease - whether certain action taken by the employer was “administrative action” – action taken in context of an organisational restructure – “spill and fill” process - subsequent selection process for specific substantive positions at level – delay in confirmation about whether employee would be paid relocation costs and delay in decision about whether employee would be allocated meaningful duties at the end of temporary transfer – whether the disease was “suffered as a result of” administrative action – characterisation of administrative action – whether each of the administrative actions were reasonable and taken in a reasonable manner
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14 and 53
Cases
Comcare v Martin (2016) 258 CLR 467
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare (2005) 145 FCR 29
Lim v Comcare (2017) 250 FCR 298
Wieczorek and Comcare (Compensation) [2017] AATA 994
Secondary Materials
Defence Enterprise Collective Agreement 2012-2014
REASONS FOR DECISION
Member K. Parker
14 March 2018
INTRODUCTION
This application involved a dispute about whether Dr George Galanis was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) with respect to an injury sustained while he was employed at the Department of Defence (Department). Comcare accepts that Dr Galanis’s employment at the Department contributed to, to a significant degree, his claimed injury. However, Comcare denies liability under the SRC Act, as it considers that Dr Galanis’s injury arose as a result of reasonable administrative action taken by the Department in a reasonable manner and for this reason; the exclusion under s 5A applies to disentitle Dr Galanis from compensation under the SRC Act. Dr Galanis, on the other hand, contended that this exclusion did not apply.
BACKGROUND
Dr George Galanis is a 58 year old man with a background in science. He holds a Computer Science degree and a Doctorate of Philosophy from the Royal Melbourne Institute of Technology in the Engineering Department (in engineering psychology) on the study of “human factors” in the simulation and flight training area. Dr Galanis said he had qualified for a commercial pilot’s qualification, namely, an Air Transport Pilot Licence, which was maintained up until 2000.[1]
[1] Refer to paragraphs [10] and [11] of a statement by Dr Galanis dated 9 September 2016 forming Exhibit “A1”…
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- Galanis and Comcare (Compensation) [2018] AATA 486
- Case
- [2018] AATA 486
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine several issues. These included whether Dr Galanis suffered an ailment as defined by the SRC Act, whether this ailment was contributed to to a significant degree by his employment, and if so, whether it was a disease under section 5B of the Act. Crucially, the Tribunal had to ascertain whether the ailment was suffered as a result of reasonable administrative action taken in a reasonable manner, thereby falling within the exclusion in section 5A(1) of the SRC Act. If this exclusion did not apply, the Tribunal also needed to determine if Dr Galanis's injury resulted in an impairment that entitled him to compensation under section 14 of the Act.
The Tribunal found that Dr Sare, Dr Galanis's predecessor, failed to take active steps to ensure his successor was aware of the commitment made to Dr Galanis regarding his relocation. Specifically, Dr Sare did not mention the commitment during the handover process and did not take steps to protect Dr Galanis from receiving mixed messages about this commitment. The Tribunal considered that Dr Sare should have either formally recorded the relocation commitment in writing, copied to relevant parties, or sent an email to his successor and Dr Galanis's line manager clearly advising them of the commitment. The Tribunal also noted that Dr Galanis's employment ended on 9 March 2016, following a period of various forms of leave after he decided to take voluntary redundancy.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Comcare’s decision-maker deemed the date of injury to be 1 August 2014. This decision-maker considered whether the claimed condition resulted from reasonable administrative action to examine whether the exclusionary provision under subsection 5A(2) of the SRC Act applied to Dr Galanis’s claim. In doing so, the decision-maker considered the “actions” to be the restructuring of the organisation (i.e. DSTO) and was satisfied that because those actions were not specific to Mr Galanis but rather, an organisational change as a result of a review, they were not administrative action and consequently, the exclusionary provision did not apply. Following a reconsideration, Comcare revoked its earlier decision to accept liability for Mr Galanis’s claim On 28 August 2015, the Department requested that Comcare reconsider its determination to accept Dr Galanis’s claim, on the basis that the exclusionary provision under subsection 5A(2) of the SRC Act applied to Dr Galanis. The Department considered that there were a number of specific actions taken by DSTO in relation to Dr Galanis’s employment that could be appropriately characterised as reasonable administrative action taken in a reasonable manner in respect of Dr Galanis’s employment.[61] [61] Refer T-Documents T17. On 15 October 2015, Dr Galanis sent an email to Comcare and stated that the “root cause of his condition” was not the fact that he had not gained a substantive position in the new DSTO structure, but instead it was:(a)the lack of consideration about his term transfer in Canberra; and(b)the lack of any plan about how the transition in moving from Canberra to Melbourne was to take place should he not gain a substantive position before the end of his extended transfer. Comcare reconsidered its earlier determination and on 4 November 2015, decided to revoke it. Comcare’s review officer found that “it was [Dr Galanis’s] specific employment status due to the organisational restructure which included receiving the letter of 27 June 2014 and subsequent formalisation his entitlements (being classified as “unassigned” from 1 July 2014) that contributed, in part, to [his] claimed condition”. The review officer considered that;(a)there was no evidence before her indicating that the level of information provided to Dr Galanis prior to 1 August 2014 was unreasonable; and (b)that the evidence before her indicated that discussions were held with Dr Galanis on an individual basis regarding the duration of his rotational position and arrangements regarding relocation. Comcare accepted the Department’s submission that the exclusionary provision under subsection 5A(2) of the SRC Act applied to Dr Galanis with respect to his claimed condition. Consequently, Comcare denied liability under s 14 of the SRC Act.[62] [62] Refer T-Documents T32a.ISSUES To determine whether Mr Galanis was entitled to compensation under s 14 of the SRC Act, the issues for determination by the Tribunal are as follows:(a)Did Mr Galanis suffer an ailment as defined in s 4(1) of the SRC Act? (b)Was the ailment contributed to, to a significant degree, by Dr Galanis’s employment and consequently, a disease under s 5B of the SRC Act? (c)If so, was Dr Galanis’s disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment and thereby excluded from the definition of an injury under s 5A(1) of the SRC Act?(d)If this exclusion did not apply, did Dr Galanis’s injury result in impairment entitling him compensation under s 14 of the SRC Act?LEGISLATION