Harrison and Comcare (Compensation) - [2017] AATA 1120

Harrison and Comcare (Compensation) [2017] AATA 1120 (19 July 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4659
Re:Joanne Harrison
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:19 July 2017
Place:Canberra

The decision under review is affirmed.
.........................[sgd]...............................................
Deputy President Gary Humphries
Catchwords
WORKERS COMPENSATION – psychological injury – employee on temporary performance allowance – temporary performance allowance not renewed – no renewal of temporary performance allowance constitutes a ‘failure to retain a benefit’ under the relevant Act – injury caused by administrative action taken in respect of employee’s employment – administrative action deemed reasonable – administrative action taken in a reasonable manner in respect of employee’s employment – exemption to liability made out – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
Comcare v Martin (2016) 153 ALD 167
Comcare v Martinez (No2) 302 ALR 608
Lee and Comcare [2012] AATA 867
Secondary Materials
Department of Social Services Enterprise Agreement 2015 to 2018
Department of Social Services - Job Evaluation Policy, April 2014
Temporary Performance Allowance Policy, February 2016
REASONS FOR DECISION
Deputy President Gary Humphries
19 July 2017

Ms Joanne Harrison suffered a workplace injury arising from her employment with the Department of Social Services. That injury, an adjustment disorder with anxiety and depressed mood, counts as a disease pursuant to s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The injury occurred on 29 February 2016 as a result of a meeting held at her workplace where she was advised by her superiors that she would not continue to occupy an APS6 position she had filled for the previous eight months.
Comcare, the respondent in these proceedings, concedes that what occurred that day did indeed psychologically injure Ms Harrison, but contends that what occurred at that meeting constitutes reasonable administrative action, taken in a reasonable manner, pursuant to the exemption in s 5A of the Act. The effect of that exemption is to render what would otherwise be a compensable injury non-compensable. The single issue before the Tribunal is whether that contention can be upheld.
THE APPLICABLE LAW
An employee is entitled to workers compensation in the circumstances described in s 14(1) of the Act:
(1)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.
To claim compensation under s 14(1) of the Act, an employee must have suffered from an injury (which includes a disease) pursuant to the Act.
Injury is defined by s 5A:
(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…

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 Harrison and Comcare (Compensation)

Details

AGLC: Harrison and Comcare (Compensation) [2017] AATA 1120
Case: [2017] AATA 1120
Decision Date: 19 July 2017

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding Comcare's decision to deny liability for Ms Harrison's adjustment disorder. Ms Harrison had been employed by the Department of Social Services and had held a temporary performance allowance (TPA) at the APS6 level, managing access to datasets. This allowance was periodically extended over approximately eight months, with the final approval expiring on 29 February 2016. Following a review of staffing, Ms Harrison's TPA was not renewed, and she was subsequently allocated to an APS5 role. Ms Harrison contended that this failure to retain her APS6 TPA constituted a "failure to retain a benefit" and that the administrative actions taken in respect of her employment were unreasonable and caused her psychological injury.

The Tribunal was required to determine whether the failure to renew Ms Harrison's temporary performance allowance constituted a "failure to retain a benefit" under the relevant Act. It also needed to consider whether any administrative action taken in respect of Ms Harrison's employment was reasonable and taken in a reasonable manner, so as to attract an exemption from liability under section 5A of the Act. Specifically, the Tribunal had to assess whether the department's actions, including the non-renewal of the TPA and the subsequent allocation to an APS5 role, were objectively reasonable, irrespective of Ms Harrison's subjective expectations or reactions.

The Tribunal reasoned that the failure to renew Ms Harrison's TPA did indeed constitute a failure to retain a benefit, which was a form of reasonable administrative action under section 5A(2)(f). While acknowledging that Ms Harrison suffered a psychological injury as a result of this administrative action, the Tribunal found that Comcare had discharged its onus to demonstrate that the actions taken by the department were reasonable and executed in a reasonable manner. The Tribunal noted that the department's actions appeared to be in accordance with relevant policies and administrative practices, including the Temporary Performance Allowance Policy which indicated that temporary performance was intended as a short-term measure. Although the failure to offer Ms Harrison a support person on 29 February 2016 was considered a departure from ideal practice, the Tribunal did not regard this as sufficiently serious to invalidate the overall reasonableness of the administrative restructure. The Tribunal emphasised that the test for exemption under section 5A focused on the objective reasonableness of the employer's actions, not the employee's subjective expectations.

Consequently, the Tribunal affirmed the reviewable decision of Comcare dated 2 August 2016.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal’s jurisdiction to consider these issues arises from s 64 of the Act. That section authorises the Tribunal to review a reviewable decision made under s 62. In this case, the reviewable decision is the decision of Comcare’s delegate dated 2 August 2016, affirming after reconsideration an earlier determination dated 7 June 2016 which denied liability for Ms Harrison’s adjustment disorder.THE EVIDENCE Ms Harrison worked for six or seven years at what is now called the National Centre for Longitudinal Data (NCLD or the Centre), within the Department of Social Services (the department). In her evidence to the Tribunal it was clear that she was enthusiastic about her work there and generally valued working with others in roles associated with the NCLD, both departmental officers and stakeholders (over 200 in number) seeking access to the datasets. In mid-2015 Ms Harrison was a departmental officer with a substantive APS4 position at NCLD. She applied for and won a merit selection process to receive a temporary performance allowance (TPA) at the APS6 level, starting on 6 July 2015. In that position she managed the provision of access to the NCLD datasets. The provision of TPA to public servants who act in such roles is governed by a Temporary Performance Allowance Policy (TPA Policy). A version of the TPA Policy dated February 2016 was before the Tribunal. According to that policy: Temporary performance is designed to be a short-term interim measure. Where it is needed to fill a substantive vacancy, the period of temporary performance will be limited to six months. Only a manager at or above Branch/State Manager (or equivalent level) may approve any extension of the six month period. Approval for Ms Harrison to continue to receive TPA at the APS6 level occurred periodically over the eight months or so following her winning of the allowance commencing in July 2015. Approval was granted in July 2015, October 2015, January 2016 and February 2016, for periods ranging from 3½ months to 3½ weeks. The February TPA approval (the final approval) granted to Ms Harrison was due to expire on 29 February 2016. In October 2015 Mr Adam Rowland commenced with the NCLD as executive manager, and the following month Mr Anthony Cowley commenced as a director there. Soon afterwards both men began a review of the business functions of the NCLD, focusing particularly on the role of staff members who were on TPA. This exercise was consequential to the merging of four major national surveys to create the NCLD not long before. In January 2016 Mr Rowland sent emails to the staff at NCLD providing updates on progress regarding the NCLD structure and staffing profile. In an email dated 28 January 2016 he made the following statement:I have decided to extend all acting (TPA) arrangements that were due to expire at the end of January to the end of February…anyone affected should please send TPA extension requests to 29 February through SAP ESSentials to the appropriate delegate. (emphasis in original)(SAP ESSentials was the departmental database where details of staff TPA, leave and other entitlements were captured – the HR hub, as Mr Cowley put it.) Ms Harrison made an extension request in accordance with this directive, which was approved.

Decision

Reasons for decision

On balance the Tribunal considers that the failure to offer Ms Harrison a support person on 29 February 2016, while some way from ideal, falls nonetheless within the boundaries of reasonable administrative action taken in a reasonable manner, as calibrated by the decisions in Martinez and Lee.CONCLUSION Having acknowledged the clear evidence that an administrative action related to Ms Harrison’s employment caused her a psychological injury, it then fell to Comcare to demonstrate to the Tribunal that the actions in question were reasonable, and were carried out reasonably, if it sought the protection of s 5A. The Tribunal finds on the balance of probabilities that Ms Harrison was injured by her failure to retain a benefit (namely a TPA at the APS6 level), a head of reasonable administrative action referred to in s 5A(2)(f). Despite her best efforts, Ms Harrison was in turn unable to demonstrate that any of the steps taken by the department in this process were in some way unreasonable, or were executed unreasonably. In contrast Comcare was able to demonstrate reasonableness in the employer’s actions. Although, in principle, action which is lawful can nonetheless be unreasonable, in this instance all the steps taken by the department in respect of her employment seem to have been in accordance with the relevant policies and administrative practices. The one possible departure from this finding is the failure to offer Ms Harrison the choice of a support person on 29 February 2016, but the Tribunal does not regard this arguable lapse as serious enough to invalidate what was otherwise a reasonably conscientious exercise as part of an appropriate administrative restructure. The essence of what injured Ms Harrison on that day was the clash between the department’s administrative decision and her firm conviction that no such decision could be taken without her active involvement. There was simply no good basis on which to hold such a conviction, and as such a claim for compensation based on that conviction cannot be upheld. The test imposed by the s 5A exemption is concerned only with the objective reasonableness of the employer’s actions, not the subjective expectations and subsequent reaction of the employee. I find the administrative action taken by the employer with respect to Ms Harrison’s employment was reasonable, and was undertaken reasonably. The reviewable decision of 2 August 2016 must therefore be affirmed.

Ratio Decidendi

Legal Principle Established

Ms Baker said that the requirement in the EA for discussion with the relevant employees was focused on those holding substantive positions, not TPA positions. Mr Cowley, in his evidence, considered that the consultation requirements of the EA had been met in this case.Consideration It is evident to the Tribunal that there was some confusion within the department after February 2016 about which policy or policies applied to Ms Harrison’s situation. That confusion extended, it seems, to Comcare’s determinations. Nonetheless, the weight of evidence suggests that Ms Harrison’s APS6 was not reclassified, and that the JE Policy was not triggered in her case. Ms Stratton’s legal advice is particularly persuasive in this regard. It is somewhat less clear as to whether the department acted in breach of its Internal Recruitment Advertising Policy. Ms Harrison’s (uncontradicted) evidence that the policy was still available on the department’s intranet site would suggest that it had in fact not been superseded. However, even if Ms Harrison’s proposition were accepted by the Tribunal, it leads to the conclusion that Ms Harrison was awarded, and served in, an APS5 position for a period of several months in breach of the department’s policies. It is difficult to see how Ms Harrison could be said to have suffered a psychological injury by virtue of receiving a benefit to which she was not entitled. The awarding of the position may not qualify as reasonable administrative action, but it is also evidently not administrative action as a result of which she suffered an injury, in the terms specified in s 5A(1). Much the same can be said of Ms Harrison’s claim that she was administratively allocated to the APS5 role by her supervisor while she was on leave, so that there was no opportunity for me to say no. When she returned to work she accepted the APS5 role, meaning that her supervisor’s actions conferred a benefit, i.e. no lacuna in her pay. The consultation provisions in the Enterprise Agreement and the APS code of conduct are broadly framed, and the evidence of Ms Baker and Mr Cowley, officers who had senior bureaucratic roles in interpreting those provisions, was that those provisions were honoured in Ms Harrison’s case. The Tribunal is not satisfied that any breaches of those provisions had been demonstrated.A failure to consult or to warn Ms Harrison told the Tribunal that the department’s failure to consult with her about the downgrading of her duties from an APS6 to an APS5 level, and the failure to warn her of the possibility of that downgrading sooner than the day before it took effect, was unreasonable. The reality of that failure struck her at the meeting of 29 February 2016. She submitted:I left work immediately after the meeting very distressed by what had just occurred, i.e. I had been given no warning that my job was being evaluated; that my job was being reclassified; and that my demotion was to commence the following morning meaning I had just incurred a substantial and immediate pay cut.