Haywood and Comcare (Compensation) [2016] AATA 667 (31 August 2016)
Division
GENERAL DIVISION
File number
2014/5839
Gregory Haywood
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member Date 31 August 2016 Place Canberra Comcare’s decision on 5 September 2014 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.
PRACTICE AND PROCEDURE — whether counselling session tainted by bias — no actual bias — content of rules of procedural fairness that apply to counselling session — whether fair-minded observer could reasonably apprehend that decision maker did not bring an impartial mind to decision to counsel Applicant — no apprehended bias.
LEGISLATION
Public Service Act 1999, ss 13, 15
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 7(4), 14
CASES
Comcare v Martinez (No 2) (2013) 212 FCR 272
Deal v Kodakkathanath [2016] HCA 31
Drenth v Comcare (2012) 128 ALD 1
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Isbester v Knox City Council (2015) 255 CLR 135
Kioa v West (1985) 159 CLR 550
Lim v Comcare [2016] FCA 709
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Smith v Comcare (2013) 212 FCR 335
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
REASONS FOR DECISION
Dr James Popple, Senior Member
31 August 2016
Summary
The applicant had a meeting with his supervisor and two other people who also worked at what was called (at the time) the Department of the Environment (the Department). At that meeting, the applicant was counselled about what the Department called his inappropriate workplace behaviour. Comcare concedes that the applicant suffered an adjustment disorder as a result of that counselling session, and that his condition is a “disease” for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
However, the counselling session—and what the applicant’s supervisor 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 him compensation.
Background
Mr Gregory Haywood worked for the Department. On 9 December 2013, he made a claim for compensation for “anxiety disorder (or similar)”. On 7 April 2014, Comcare denied that it was liable to pay him compensation under s 14 of the SRC Act for what it characterised as “adjustment reaction with mixed emotional features”.
On 4 July 2014, Mr Haywood requested a reconsideration of that determination. On 5 September 2014, Comcare affirmed its determination.
On 11 November 2014, Mr Haywood applied to the Tribunal, under s 64 of…
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- Case
- [2016] AATA 667
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine two primary legal issues. Firstly, whether the counselling session conducted by Mr Haywood's supervisor and another officer constituted reasonable administrative action taken in a reasonable manner in respect of his employment. Secondly, the Tribunal considered whether the counselling session was tainted by bias, specifically whether a fair-minded observer could reasonably apprehend that the decision-maker did not bring an impartial mind to the decision to counsel Mr Haywood.
The Tribunal found that the counselling session, and the actions of Mr Haywood's supervisor and another officer during that session, constituted reasonable administrative action taken in a reasonable manner in respect of his employment. The Tribunal rejected Mr Haywood's claims of apprehended bias, finding no evidence that Mr Spencer, who participated in the counselling, held any pre-existing negative opinion of Mr Haywood or his work. The Tribunal accepted Mr Spencer's evidence that he had no recollection of prior dealings with Mr Haywood that would suggest bias. Consequently, Mr Haywood's disease was excluded from the definition of "injury" under section 5A of the SRC Act.
As a result of these findings, the Tribunal affirmed Comcare's decision. Comcare was therefore not liable to pay compensation to Mr Haywood for his adjustment disorder.
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