Galanis and Comcare (Compensation) - [2018] AATA 486

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”…

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 Galanis and Comcare (Compensation)

Details

AGLC: Galanis and Comcare (Compensation) [2018] AATA 486
Case: [2018] AATA 486
Decision Date: 14 March 2018

CaseChat Overview and Summary

This matter concerned an appeal by Dr Galanis against a decision by Comcare to revoke its acceptance of his workers' compensation claim. Comcare had initially accepted the claim, deeming the date of injury to be 1 August 2014, but later reconsidered this decision at the request of the Department. The Department argued that Dr Galanis's condition arose from reasonable administrative action taken in a reasonable manner in respect of his employment, which would exclude it from compensation under subsection 5A(2) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). Dr Galanis contended that the root cause of his condition was not his failure to secure a substantive position following an organisational restructure, but rather the lack of consideration for his term transfer and the absence of a clear plan for his relocation to Melbourne.

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

At the hearing, Dr Cocking confirmed that she had interacted with Dr Galanis on two occasions – the first in relation to the selection process for Principal Scientist positions and the second in relation to the issue of Dr Galanis’s relocation to Melbourne.Dr Cocking’s evidence in relation to the selection process for the Principal Scientist position In relation to the selection process for filling the Principal Scientist positions in the new structure, Dr Cocking said that “they called for a panel across all of the organisation to address the range of science and technological expertise that potential applicants were likely to present”. Dr Cocking said that when she first spoke to Dr Galanis, the Principal Scientist positions in the second round were limited to unassigned staff. She said it was the first opportunity for those unassigned staff to find a substantive role. She said she treated Dr Galanis the same as the other staff when providing guidance as to how to best present their evidence in support of their application. Dr Cocking said that in the development of the strategy plan, they had made special provision for scientists at the S&T7 level. She said there were group leader roles, who were scientists but who were to manage a group; special scientific advisers; and other development roles. Dr Cocking said the Principal Scientists were scientists and they had made provision for ten across the whole organisation. Dr Cocking said they had to be “world class”. Dr Cocking said the expectation for them was as follows:They would develop science in area really relevant to Defence; to be able to mentor staff and build capacity within DSTO so there was a pool of people to provide advice to the government needed in the future. Broader academic community. They had to have communication skills as well. The reasonableness of Dr Galanis’ request is further supported by the provisional tenor of the wording used by Dr Sare in his email to Dr Galanis, namely, that the Department “would need to” honour its previous commitment. This was one stop short of confirming to Dr Galanis that the Department would in fact honour that commitment. Dr Sare, upon coming to an awareness that he was going to retire half way through a major organisational structure, that a different person would succeed him, and that it was not intended that his successor would shadow Dr Sare at any time prior to his departure, took no active step, when he should have done so, to ensure that his successor was aware of the ‘relocation commitment’. Dr Sare should have, but did not, ensure that he had mentioned it to his successor Change Manager during the handover process. Further, the Tribunal considers that Dr Sare should have, but did not, do at least one or more of the following things to protect against Dr Galanis receiving ‘mixed messages’ from the Department about this commitment prior to his departure:(a)revisited and complied with Dr Galanis’s request for the reference to the relocation commitment (and an acknowledge that he was on a term transfer) to be recorded in a formal letter to Dr Galanis and copied in the successor Change Manager and Dr Galanis’s line manager;(b)sent an email to his successor and Dr Galanis’s line manager clearly advising them that this commitment had been made to Dr Galanis; and(c)incorporated a clear reference to this commitment, and the fact that Dr Galanis was on a term transfer, in his handover notes to his successor.[80][80] Refer to paragraph [145] of these reasons for decision.

Decision

Reasons for decision

Dr Galanis responded to Dr Cocking’s email on 12 June 2015 (referred to in paragraph [97] of these reasons for the decision) by email on 23 June 2015.[57] Dr Galanis stated that he did not agree with Dr Cocking’s interpretation of Dr Sare’s email on 27 June 2014 and explained his differing interpretation as to what it meant. Dr Galanis stated:[57] Refer Annexure “E” to Dr Cocking’s Statement.I subsequently accepted the offer of continuing the AFSA role until mid-September 2015 and also extended my stay in Canberra because of the conversations with Ian as well as his email. If Ian had plainly stated, as you have done, that he did not accept my proposal I would have continued the negotiation in a different way. For example, I would have proposed relocating to Melbourne immediately and commute to Canberra as required to perform specific Canberra based AFSA duties. However, Ian did not refuse my offer and so to interpret his intent differently now would be detrimental for me given the course of action I took last year.So I ask that you reconsider your predecessor’s email and read it in the spirit that it was intended, perhaps it was a reluctant acceptance, but nevertheless it was an acceptance. In that light, and to avoid a dispute process, I make the following suggestion:·That you approve my relocation to Melbourne and that the relocation process commence as soon as practical.·On relocation to Melbourne that I be released from the AFSA position.·That I remain unassigned at the S&T 7 level in Melbourne for 6 months from the date of completion of settling in to Melbourne.·That non-AFSA specific elements of my current PFADS be considered as reasonable meaningful duties.·That I am allowed to use the 6 months to assess my circumstances in Melbourne so that I am able to make a rational decision regarding taking a VR or filling a substantive S&T 6 level position.Dr Cocking’s decision on 11 August 2015 to provide Dr Galanis with three months of duties after his relocation to Melbourne The Department sent a letter dated 11 August 2015 to Dr Galanis to confirm that he would be provided with three months of duties after relocating to Melbourne. Dr Cocking gave evidence at the Tribunal had she had made this decision. Dr Galanis’s move to Melbourne in September 2015 Dr Galanis moved to Melbourne in September 2015. Dr Galanis visited his Canberra-based treating general practitioner and psychologist in November 2015. He said he was advised by them that the best option as far as his health was concerned was to take a voluntary redundancy. Dr Galanis advised the Department of his intention to take a voluntary redundancy at the end of November 2015. A redundancy offer was made and accepted by Dr Galanis. Dr Galanis’s employment with the Department ended on 9 March 2016 The last day that Dr Galanis attended for duties at the Department was 28 January 2015.[58] His employment with the Department formally ended on 9 March 2016, following a period during which Dr Galanis took sick leave, annual leave, long service leave and leave without pay.[59] [58] Refer paragraph [6] of the Statement of the Applicant dated 9 September 2016 (Dr Galanis’s Statement).[59] Refer paragraph [46] of Dr Galanis’s Statement.Comcare initially accepted Mr Galanis’s workers compensation claim

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