Haskins and Comcare (Compensation) - [2017] AATA 8

Haskins and Comcare (Compensation) [2017] AATA 8 (10 January 2017)
Division:GENERAL DIVISION
File Number: 2015/3082
Janine Haskins
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr James Popple, Senior Member
Date:10 January 2017
Place:Canberra

Comcare’s decision on 27 May 2015 is affirmed.
....................[sgd]....................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Applicant suffered psychological condition as result of counselling session — whether counselling session was reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment — decision under review affirmed.
LEGISLATION
Public Sector Management Act 1994 (ACT), s 9
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14
CASES
Comcare v Martinez (No 2) (2013) 212 FCR 272
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Drenth v Comcare (2012) 128 ALD 1
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
Dr James Popple, Senior Member
Summary

The applicant worked for the Office of the Director of Public Prosecutions for the Australian Capital Territory (the ACT DPP).[1] She had a meeting with the Director and two other people who also worked at the ACT DPP. At that meeting, the applicant was counselled about what the Director called her unprofessional conduct. Comcare concedes that the applicant suffered a psychological condition as a result of that counselling session, and that her condition is a “disease” for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
[1] As explained at [11] below, Mr Jon White is the Director of Public Prosecutions for the Australian Capital Territory. In these reasons for decision, I refer to him as the Director of Public Prosecutions, the Director or Mr White, and I refer to his Office as the ACT DPP.
However, the counselling session—and what the Director and another person did at the counselling session—was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay her compensation.
Background
Ms Janine Haskins worked for the ACT DPP. On 5 January 2015, she made a claim for compensation for “generalised anxiety disorder”. On 30 March 2015, Comcare denied that it was liable to pay her compensation under s 14 of the SRC Act.
On 1 May 2015, Ms Haskins requested a reconsideration of that determination. On 27 May 2015, Comcare affirmed its determination.
On 23 June 2015, Ms Haskins applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.
Decision under review
The decision under review is Comcare’s decision on 27 May 2015 to affirm its determination that Comcare is not liable to pay compensation to Ms Haskins.
Issue
Comcare concedes that Ms Haskins suffered a psychological condition which was contributed to, to a significant degree, by her employment by…

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 Haskins and Comcare (Compensation)

Details

AGLC: Haskins and Comcare (Compensation) [2017] AATA 8
Case: [2017] AATA 8
Decision Date: 10 January 2017

CaseChat Overview and Summary

This matter concerned an application by Ms Janine Haskins for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) for a psychological condition. Comcare had denied liability, affirming its earlier determination that it was not liable to pay compensation. Ms Haskins sought a review of Comcare's decision before the Tribunal.

The central legal issue before the Tribunal was whether Ms Haskins's psychological condition, which Comcare conceded was a "disease" contributed to by her employment to a significant degree, was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, the condition would be excluded from the definition of "injury" under s 5A of the SRC Act, meaning Comcare would not be liable to pay compensation. The determination of this issue hinged on the events that transpired during a counselling session held on 7 August 2014.

The Tribunal, presided over by Senior Member Dr James Popple, considered the events of the counselling session. While acknowledging that Ms Haskins suffered a psychological condition and that the counselling session was a cause, the Tribunal found that the counselling session constituted reasonable administrative action taken in a reasonable manner. This conclusion was reached after considering the evidence and determining that the Director of Public Prosecutions acted reasonably in addressing a complaint against Ms Haskins, opting for an informal resolution process that was the least disadvantageous option available. Consequently, the exclusion in s 5A of the SRC Act applied.

Comcare's decision of 27 May 2015 to affirm its determination that it was not liable to pay compensation to Ms Haskins was affirmed by the Tribunal.

Orders

Orders of the court

Comcare’s decision on 27 May 2015 is affirmed.

Background

Background to the litigation

However, the counselling session—and what the Director and another person did at the counselling session—was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay her compensation.Background Ms Janine Haskins worked for the ACT DPP. On 5 January 2015, she made a claim for compensation for “generalised anxiety disorder”. On 30 March 2015, Comcare denied that it was liable to pay her compensation under s 14 of the SRC Act. On 1 May 2015, Ms Haskins requested a reconsideration of that determination. On 27 May 2015, Comcare affirmed its determination. On 23 June 2015, Ms Haskins applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 27 May 2015 to affirm its determination that Comcare is not liable to pay compensation to Ms Haskins.Issue Comcare concedes that Ms Haskins suffered a psychological condition which was contributed to, to a significant degree, by her employment by the ACT DPP. That means that her condition is a “disease” as defined in s 5B of the SRC Act. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. The issue in this review is whether Ms Haskins’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A, and Comcare is not liable to pay her compensation. If it was not, Comcare is liable to pay her compensation under s 14. This review turns on what happened at a meeting held at the ACT DPP on 7 August 2014 (the counselling session). Ms Haskins says that the counselling session caused her condition. Comcare accepts that the counselling session was at least one cause of Ms Haskins’s condition.[2] If the counselling session was reasonable administrative action taken in a reasonable manner, the exclusion in s 5A of the SRC Act applies even if the counselling session was only one of several causes of Ms Haskins’s condition.[3][2] Comcare identifies two other possible causes: the Director’s 27 June 2014 letter to Ms Haskins, advising her that he had received a complaint (see [15] below); and the interview that Ms Haskins had with Mr Fernandez on 15 July 2014 (see [17]). Comcare says that each of these (like the counselling session) was reasonable administrative action taken in a reasonable manner.[3] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at 472 [24] per Gray J, citing Hart v Comcare (2005) 145 FCR 29 at 33 [21]–[23] per Branson, Conti and Allsop JJ. See also Drenth v Comcare (2012) 128 ALD 1 at 7 [29] per Rares, McKerracher and Murphy JJ.People involved

Evidence

Evidence Before The Court

I make no findings about which of these accounts is more accurate. For reasons explained below,[11] even if I were to find that Ms Haskins and Ms Boyd are correct about both of these issues, that would not affect my conclusion about whether the counselling session was reasonable administrative action taken in a reasonable manner.[11] See [37] below.Ms Haskins’s evidence Ms Haskins sought to bring evidence about events that occurred after the counselling session: about what Ms Haskins had told others about the counselling session; about the extent to which the counselling session affected her; and about later actions of the ACT DPP, which she says were bullying and harassment. I refused to let her bring this evidence, on the basis that that it was not relevant to the issue in this review: whether the counselling session was reasonable administrative action taken in a reasonable manner. From the medical evidence before me, there is no doubt that Ms Haskins was affected by the counselling session. I think that her condition is outside the boundaries of normal mental functioning and behaviour.[12] As noted above, Comcare concedes that Ms Haskins’s psychological condition was contributed to, to a significant degree, by her employment by the ACT DPP—specifically by the counselling session.[12] See Comcare v Mooi (1996) 69 FCR 439 at 444 per Drummond J. Comcare had previously argued that Ms Haskins’s condition was not outside the boundaries of normal mental functioning and behaviour. At the hearing, Comcare said that it no longer argues that. In preferring the evidence of Mr White, Ms Flukes and Ms Boyd to the evidence of Ms Haskins, I do not mean to suggest that Ms Haskins is lying. I believe that she perceived the counselling session in the way that she has described it. However, her recollection of the counselling session is very different to that of the other attendees.Was the counselling session reasonable administrative action taken in a reasonable manner? In my opinion, it was reasonable for Mr White to decide to conduct the counselling session. Given the nature of the complaint, Mr White was obliged to treat it seriously. He arranged for Mr Fernandez to undertake an “evidence gathering process”. Ms Haskins admitted to some of the conduct complained of, but not all of it. Mr White came to the view that the conduct that Ms Haskins had admitted to was misconduct. That was clearly a reasonable view to come to, and I note that Ms Haskins concedes that she did the wrong thing. Mr White had a number of options at that point. Given Ms Haskins’s admissions, he was obliged to take some action. Mr White chose the option that could be characterised as the least disadvantageous to Ms Haskins: he decided that the matter was likely to be resolved informally. It was open to him to invoke other processes that are set out in section H of the Certified Agreement, which could have resulted in suspension, reassignment or even termination of employment. I do not say that it would have been reasonable for Mr White to have invoked any of these other processes in this case. But I think it was reasonable that he invoked the process set out in clause H5.4 of the Certified Agreement and arranged to discuss Ms Haskins’s behaviour with her as soon as possible.

Decision

Reasons for decision

On 23 June 2015, Ms Haskins applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 27 May 2015 to affirm its determination that Comcare is not liable to pay compensation to Ms Haskins.Issue Comcare concedes that Ms Haskins suffered a psychological condition which was contributed to, to a significant degree, by her employment by the ACT DPP. That means that her condition is a “disease” as defined in s 5B of the SRC Act. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. The issue in this review is whether Ms Haskins’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A, and Comcare is not liable to pay her compensation. If it was not, Comcare is liable to pay her compensation under s 14. This review turns on what happened at a meeting held at the ACT DPP on 7 August 2014 (the counselling session). Ms Haskins says that the counselling session caused her condition. Comcare accepts that the counselling session was at least one cause of Ms Haskins’s condition.[2] If the counselling session was reasonable administrative action taken in a reasonable manner, the exclusion in s 5A of the SRC Act applies even if the counselling session was only one of several causes of Ms Haskins’s condition.[3][2] Comcare identifies two other possible causes: the Director’s 27 June 2014 letter to Ms Haskins, advising her that he had received a complaint (see [15] below); and the interview that Ms Haskins had with Mr Fernandez on 15 July 2014 (see [17]). Comcare says that each of these (like the counselling session) was reasonable administrative action taken in a reasonable manner.[3] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at 472 [24] per Gray J, citing Hart v Comcare (2005) 145 FCR 29 at 33 [21]–[23] per Branson, Conti and Allsop JJ. See also Drenth v Comcare (2012) 128 ALD 1 at 7 [29] per Rares, McKerracher and Murphy JJ.People involved Four people were present at the counselling session:·Ms Haskins;·Mr Jon White SC, the Director of Public Prosecutions—head of the ACT DPP;·Ms Emma Flukes,[4] the director of corporate services and human resources at the ACT DPP;·Ms Lisa Boyd,[5] an employee of the ACT DPP supervised by Ms Haskins.All four provided statements, and gave evidence at the hearing. Another person was involved in events relevant to this review:·Mr Mark Fernandez, an employee of the ACT DPP.Mr Fernandez did not provide a statement or give evidence at the hearing.[4] Ms Flukes was known by a different name at the time.[5] Ms Boyd was known by a different name at the time.Before the counselling session

Ratio Decidendi

Legal Principle Established

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