Gilmour and Comcare (Compensation)

Case [2016] AATA 54

Gilmour and Comcare (Compensation) [2016] AATA 54 (3 February 2016)

Division

GENERAL DIVISION

File Number(s)

2015/1251

Re

Leanne Gilmour

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Ms N Isenberg, Senior Member
Date 3 February 2016
Place Sydney

The Tribunal affirms the decision under review.

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

Ms N Isenberg, Senior Member

CATCHWORDS

WORKER’S COMPENSATION – adjustment reaction with depressive reaction – whether injury the result of reasonable administrative action – performance appraisal – performance appraisal rating – higher duties – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 7, 14

CASES

Comcare v Martinez (No 2) [2013] FCA 439

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Commonwealth of Australia and Comcare and Anor [2013] AATA 503
Hart v Comcare [2005] FCAFC 16

Martin v Comcare [2015] FCAFC 169

REASONS FOR DECISION

Ms N Isenberg, Senior Member

3 February 2016

DECISION UNDER REVIEW

  1. The Applicant, Leanne Gilmour, claims that she suffers an adjustment reaction with depressive reaction as a result of incidents that occurred during her employment with Australian Customs and Border Protection Service (‘Customs’). In the reviewable decision the review officer affirmed a determination dated 22 September 2014 which disallowed a claim for compensation under s.14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) in respect of the claimed condition.

  2. While the delegate was satisfied that the Applicant had sustained a psychological injury which was significantly contributed to by her employment, the delegate considered that the circumstances of the Applicant’s claim fell within the exclusionary provisions of the SRC Act, namely that the injury was as a result of reasonable administrative action taken in a reasonable manner. The decision under review is the reviewable decision dated 16 January 2015.

    BACKGROUND

  3. The Applicant commenced employment with Customs in 1986.  She attained promotions and since about 2002, has held the classification of CL3 and performed the role of CL3 Senior Intelligence Analyst. 

  4. According to her position statement the role of Senior Analyst requires, among other attributes, ‘flexibility to respond to operational needs, including short or long term out-posting’.  The Applicant had been out-posted for periods up 3 years at any one time to, for example, the National Organised Crime Taskforce, the Australian Crime Commission and the Australian Federal Police.   

  5. In about December 2012 she returned to her role of Senior Analyst within the Intelligence Support to Operations Branch (ISOp), Intelligence & Targeting Division of Customs. 

  6. By email dated 1 February 2013 the Applicant expressed interest in acting in the role of Liaison Officer (‘LO’) or acting as a Manager within Intelligence and Targeting.  For two weeks in February-March 2013 the Applicant acted in the Manager out-posted analyst position and for two weeks in May 2013 the Applicant relieved on an out-posting with the AFP.

  7. In May/June 2013 the Applicant participated in an end of cycle performance review (‘performance appraisal’).  She objected to being rated as having ‘met agreed requirements’ and claimed that she should have been given a rating of ‘performed above agreed requirements’.  This performance…

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AGLC
Gilmour and Comcare (Compensation) [2016] AATA 54
Case
[2016] AATA 54
Decision Date

CaseChat Overview and Summary

In the case of Gilmour and Comcare, the applicant, an employee of Customs, sought compensation for a psychological injury she claimed was caused by certain administrative actions taken in relation to her employment. The primary dispute centered on whether the psychological injury was the result of reasonable administrative action taken in a reasonable manner, which would exclude it from the definition of injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The matter was heard and determined by the Administrative Appeals Tribunal. The central legal issues revolved around the interpretation of the exclusionary provisions of the SRC Act and whether the applicant's psychological injury was a result of reasonable administrative actions taken in a reasonable manner. The applicant contended that her injury was caused by a performance appraisal and the failure to assign her higher duties, while the respondent argued that these actions were reasonable and fell within the exclusions of the Act. The Tribunal considered the evidence presented, including testimonies from the applicant, her supervisors, and a psychiatrist, as well as the PA Guidelines. It found that the performance appraisal was conducted in accordance with the guidelines and was a reasonable administrative action. Regarding the failure to obtain higher duties, the Tribunal noted that while the applicant expressed interest, there was no formal order of merit, and other candidates were also considered for the role. The Tribunal concluded that the actions taken were reasonable and fell within the exclusions of the SRC Act, affirming the decision not to grant compensation. Consequently, the Tribunal upheld the delegate's decision that the applicant's injury was not compensable under the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

While the delegate was satisfied that the Applicant had sustained a psychological injury which was significantly contributed to by her employment, the delegate considered that the circumstances of the Applicant’s claim fell within the exclusionary provisions of the SRC Act, namely that the injury was as a result of reasonable administrative action taken in a reasonable manner. The decision under review is the reviewable decision dated 16 January 2015. BACKGROUND The Applicant commenced employment with Customs in 1986. She attained promotions and since about 2002, has held the classification of CL3 and performed the role of CL3 Senior Intelligence Analyst. According to her position statement the role of Senior Analyst requires, among other attributes, ‘flexibility to respond to operational needs, including short or long term out-posting’. The Applicant had been out-posted for periods up 3 years at any one time to, for example, the National Organised Crime Taskforce, the Australian Crime Commission and the Australian Federal Police. In about December 2012 she returned to her role of Senior Analyst within the Intelligence Support to Operations Branch (ISOp), Intelligence & Targeting Division of Customs. By email dated 1 February 2013 the Applicant expressed interest in acting in the role of Liaison Officer (‘LO’) or acting as a Manager within Intelligence and Targeting. For two weeks in February-March 2013 the Applicant acted in the Manager out-posted analyst position and for two weeks in May 2013 the Applicant relieved on an out-posting with the AFP. In May/June 2013 the Applicant participated in an end of cycle performance review (‘performance appraisal’). She objected to being rated as having ‘met agreed requirements’ and claimed that she should have been given a rating of ‘performed above agreed requirements’. This performance appraisal is discussed below. Between mid-June 2013 and mid-November 2013 the Applicant was out-posted to the AFP, and then from mid-November 2013 was out-posted again. In February 2014, at the Applicant’s request, she was released from her out-posting and returned to the Analyst Pool prior to the commencement of some short leave in mid-March 2014. By email dated 28 February 2014, the Applicant was informed that another employee would take over her out-posted role; and she facilitated a handover. On her return from leave she returned to her role as Senior Analyst within the Analyst Pool. By email dated 4 March 2014 expressions of interest were sought from CL3 level employees in performing higher duties in the position of Manager ISOp (Joint Operations) during the period from March 2014 to early 2015. The Applicant expressed interest but was not selected for the role in the first instance. This is also discussed in detail below. By email dated 24 March 2014, the Applicant was provided with the proposed narrative for her mid-year performance appraisal. The Applicant considered the narrative to be ‘quite basic’ and lacking relevant details. The Applicant stated that she ‘was now beginning to doubt [her own] ability and work performance’. The Applicant provided her supervisor, Ms Hall with additional supporting material. On about 28 March 2014 the Applicant participated in a mid-year performance appraisal discussion and was ‘shocked’ by the feedback she received during this discussion. The points raised by the Applicant were taken into account and the Applicant was provided with a revised narrative.

Evidence

Evidence Before The Court

At the outset of the hearing I sought to clarify with the Applicant, who was unrepresented, what aspects of her work with Customs she said contributed to, to a significant degree to her adjustment disorder with anxious and depressed mood. The Applicant referred to a number of incidents. However, as the hearing evolved over 4 days, the Applicant crystallised her complaints to issues surrounding her 2012/2013 performance appraisal and her failure to obtain higher duties. EVIDENCE The Applicant made a number of statements and gave extensive evidence at the hearing. Evidence was also given by:·Debra Hall, the Applicant’s supervisor·Anne Alexander, the Applicant’s supervisor ·Matthew O’Connor, the Director Operational Intelligence·David Andrew, Assistant Director Operational Intelligence ·Dr Anne-Marie Rees, consultant psychiatrist who had examined the Applicant at the Respondent’s request. CONSIDERATION In her evidence Dr Rees said that the Applicant had told her she was upset about receiving a ‘basic’ performance appraisal in 2013 and her perception that she was “not appreciated in the workplace”. The Applicant also gave a history about her failure to obtain higher duties but, according to Dr Rees, did not provide a lot of detail. Dr Rees diagnosed the Applicant as suffering an adjustment disorder with anxious and depressed mood which related to a perception that she has been bullied in the workplace by her director and manager. The Respondent contended that the Applicant’s condition was suffered as a result of one or more reasonable administrative actions taken in a reasonable manner in respect of her employment. Because the Applicant had narrowed her contentions, only those matters are addressed. Considering the application of exclusion provisions in a similar form to s 5A of the SRC Act which applies to the present matter, Branson, Conti & Allsop JJ stated in Hart v Comcare [2005] FCAFC 16 at [22]:In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry. Simply put, the exclusion in s 5A applies even though an applicant’s condition may have had other causes. In Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 Rares and Tracey JJ discussed the operation of s.5A: ... the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment …Performance Appraisal conducted in May/June 2013

Decision

Reasons for decision

The PA Guidelines permit an employee to lodge a written appeal within two weeks of finalisation of the rating if they disagree with the performance rating. The Applicant did not lodge an appeal in respect of the performance rating. She cannot now complain, that in that regard, there has been no compliance with the PA Guidelines. Conclusion as to the performance appraisal conducted in May/June 2013 I find that the appraisal of the Applicant’s performance was a reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment. Failure to obtain higher duties By email dated 4 March 2014 Mr O’Connor informed staff within Intelligence and Targeting of internal personnel moves and invited CL3 level employees to notify him of their interest in performing higher duties backfilling the position of Manager ISOp (Joint Operations) (‘the acting Joint Ops role’) during the period from March 2014 to early 2015. The email clearly indicated that the ‘development opportunity’ to perform the acting Joint Ops role was to be offered to a number of CL3 level employees. Almost immediately the Applicant responded to Mr O’Connor by email, informing him just of her interest in the opportunity to act in the role. She understood Mr O’Connor to be aware of her experience; she was also busy on operational matters to submit more details as to her claim to the position. Mr O’Connor’s evidence was that, with the managers, he spent a considerable amount of time trying to accommodate all the people who wanted the development opportunity. That consideration included when people were taking leave and whether their jobs could be backfilled. Ms Hall’s evidence was that Mr O’Connor and the managers discussed who had applied, their various business skills and attributes, and the operational needs, and a pool was established of suitable candidates, but there was no ‘order of merit’. By email dated 7 March 2014, three days after the call for expressions of interest, Mr O’Connor advised staff that Amelia Weedon had been chosen to undertake the acting Joint Ops role for the following few months. The email said nothing about beyond that time. The Applicant contended that once the decision had been made as to the first staff member to fill the role, it was appropriate to tell the other candidates at the same time, what had been decided about the balance of the period of the vacancy. Mr O’Connor said that after the initial assignment was allocated there were discussions with the Applicant and other successful applicants that they were going to get an opportunity to act in the role further down the track. In cross-examination he said that no decision had been made at that time about the next person to undertake the assignment after Ms Weedon but the intention was to give everybody ‘who had put their hand up’ an opportunity to act. From 10 March 2014 to 14 March 2014 inclusive, the Applicant took annual leave prior to her scheduled return to the Analyst Pool. On 19 March 2014 the Applicant told Mr Andrew, the Assistant Director Operational Intelligence, that she ‘was not happy with the way higher duties had been allocated and reminded him of [her] previous requests to undertake a Liaison Officer role within the area’. She said she told Mr Andrew that it was not personal at all, but she did not believe it was fair that Ms Weeden had been placed in the acting Joint Ops role, as she had never been out-posted and had remained in the Analyst Pool where she had received the majority of higher duties opportunities.

Ratio Decidendi

Legal Principle Established

The Applicant made a number of statements and gave extensive evidence at the hearing. Evidence was also given by:·Debra Hall, the Applicant’s supervisor·Anne Alexander, the Applicant’s supervisor ·Matthew O’Connor, the Director Operational Intelligence·David Andrew, Assistant Director Operational Intelligence ·Dr Anne-Marie Rees, consultant psychiatrist who had examined the Applicant at the Respondent’s request. CONSIDERATION In her evidence Dr Rees said that the Applicant had told her she was upset about receiving a ‘basic’ performance appraisal in 2013 and her perception that she was “not appreciated in the workplace”. The Applicant also gave a history about her failure to obtain higher duties but, according to Dr Rees, did not provide a lot of detail. Dr Rees diagnosed the Applicant as suffering an adjustment disorder with anxious and depressed mood which related to a perception that she has been bullied in the workplace by her director and manager. The Respondent contended that the Applicant’s condition was suffered as a result of one or more reasonable administrative actions taken in a reasonable manner in respect of her employment. Because the Applicant had narrowed her contentions, only those matters are addressed. Considering the application of exclusion provisions in a similar form to s 5A of the SRC Act which applies to the present matter, Branson, Conti & Allsop JJ stated in Hart v Comcare [2005] FCAFC 16 at [22]:In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry. Simply put, the exclusion in s 5A applies even though an applicant’s condition may have had other causes. In Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 Rares and Tracey JJ discussed the operation of s.5A: ... the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment …Performance Appraisal conducted in May/June 2013 Ms Li observed that the Applicant had first consulted her in May 2014 and took a history that the Applicant’s anxiety was first caused when she had been asked to “prove herself”. From the context of the remark, I took this to relate to the Applicant’s 2013 performance appraisal.