Haywood and Comcare (Compensation)

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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

  1. 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).

  2. 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

  3. 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”.

  4. On 4 July 2014, Mr Haywood requested a reconsideration of that determination.  On 5 September 2014, Comcare affirmed its determination.

  5. On 11 November 2014, Mr Haywood applied to the Tribunal, under s 64 of…

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Details
Case
[2016] AATA 667
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Gregory Haywood to the Administrative Appeals Tribunal for a review of Comcare's decision to affirm its determination that it was not liable to pay compensation to Mr Haywood under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). Mr Haywood had claimed compensation for an anxiety disorder, which Comcare conceded was a "disease" contributed to by his employment. The central dispute was whether Mr Haywood's disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, which would exclude it from the definition of "injury" under section 5A of the SRC Act.

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.

Orders

Orders of the court

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Background

Background to the litigation

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 the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 5 September 2014 to affirm its determination that Comcare is not liable to pay compensation to Mr Haywood.Issue Comcare concedes that Mr Haywood suffered an adjustment disorder which was contributed to, to a significant degree, by his employment by the Department. That means that his 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 Mr Haywood’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. If it was, it is excluded from the definition of “injury” in s 5A, and Comcare is not liable to pay him compensation. If it was not, Comcare is liable to pay him compensation under s 14. The parties agree that, if Mr Haywood’s disease is an injury for the purposes of the SRC Act, the date of that injury is 24 July 2012—the date when he first sought medical treatment for the disease.[1][1] See SRC Act, s 7(4). In Smith v Comcare (2013) 212 FCR 335 the Full Court of the Federal Court explained that the question of liability under s 14 should be decided before considering the potential operation of s 7(4): at 342 [34] per Buchanan J, with whom Greenwood J agreed (at 336 [1]); and at 346–347 [54] per Bromberg J. This is because, if the condition is excluded under s 5A, there is no injury for the purposes of the Act and, therefore, no injury for s 7(4) to apply to.People involved I have before me statements from the following people who worked for the Department at relevant times:·Mr Haywood, who worked in the Department’s International Wildlife Trade Section (the IWT);·Ms Joanne Beath, who was head of the IWT and Mr Haywood’s supervisor;·Ms Deb Callister, who was head of the Wildlife Branch and Ms Beath’s supervisor;·Ms Nina Thappa, who was a colleague of Mr Haywood’s in the IWT, and had acted as head of the IWT for three months before Ms Beath took up the position;·Ms Melinda Pearce, who was a colleague of Mr Haywood’s in the IWT, but worked in a different team to Mr Haywood;·Mr Wes Spencer, who was acting head of the Department’s Environment Investigation Unit (the EIU) and, later, was head of the Department’s Professional Standards Section (the PSS); and·Ms Elizabeth Oliver, who was a union delegate.All of these people, except for Ms Thappa, gave evidence at the hearing. Another person also gave evidence at the hearing:·Mr Matthew McCorry, who worked in the IWT and was supervised by Mr Haywood.The following person was involved in events relevant to this review, but did not provide a statement or give evidence at the hearing:·Mr Paul Monagle, who worked in the Department’s human resources area.

Evidence

Evidence Before The Court

Also on 5 July, Ms Beath scheduled the counselling session for the following day. She sent an electronic meeting request to Mr Haywood, which included the following:As discussed with you, management now have some significant concerns regarding your behaviour and conduct in the workplace. Management has decided to formally meet with you to discuss what is considered by management to be a pattern of inappropriate workplace behaviour—specifically a lack of respect and courtesy towards your colleagues.During this meeting these issues will be discussed in more detail and you will be given an opportunity to respond. I anticipate that one of the outcomes of this meeting will be that you will be counselled regarding your inappropriate behaviour and you will be reminded of your obligations and responsibilities as an APS employee.The meeting request also advised Mr Haywood that Ms Beath and Mr Spencer would be at the counselling session; that Mr Haywood could bring a support person, if he wished; and that his attendance was compulsory.Before the counselling session: findings about contested evidence As noted above, the findings that I have made to this point are generally not contested. Other aspects of the events leading up to the counselling session are contested. Mr Haywood says that Mr Spencer was biased against him before and at the counselling session. He says that there was a meeting in March 2009 between officers from the IWT (including him) and officers from the EIU (including Mr Spencer). He says that, at that meeting, Mr Spencer was disrespectful of the IWT’s role. He says that the relationship between the two sections—and between him and Mr Spencer—was strained. Ms Callister confirmed that the relationship between the two sections had been strained at one point, but she did not recall Mr Spencer being involved. Mr Spencer says that he has no recollection of meeting with Mr Haywood in March 2009. Mr Spencer did not recall having had many dealings with Mr Haywood when he was working in the EIU, and he said that he had not spoken with Mr Haywood between leaving the EIU (in May 2009) and the counselling session (more than three years later). As I explain below,[6] I do not think that a finding that Mr Spencer had a low opinion of Mr Haywood or his work supports Mr Haywood’s argument in the way that he contends. In any event, I accept Mr Spencer’s evidence that he did not have any recall of any previous dealings he may have had with Mr Haywood before the counselling session: I find, on the balance of probabilities, that Mr Spencer did not have any opinion of Mr Haywood’s work or work capacity when he received Ms Beath’s e-mail (on 5 June) about Mr Haywood.[6] See [67] below. One of the PSS staff who assisted Mr Spencer to prepare for the counselling session had earlier worked in the Wildlife Branch and, like Mr Spencer, had also worked in the EIU. Mr Haywood says that there was at least an apprehension that she, too, was biased against Mr Haywood. If I understand Mr Haywood’s argument correctly,[7] the basis for this apprehension of bias is the fact that there was a strained relationship between the IWT and the EIU in 2009. I do not find that that member of the PSS staff held any opinion about Mr Haywood before Mr Spencer asked her (and a colleague) on 5 June to make preliminary inquiries and a recommendation.[7] See [118] below.

Decision

Reasons for decision

On 11 November 2014, Mr Haywood 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 5 September 2014 to affirm its determination that Comcare is not liable to pay compensation to Mr Haywood.Issue Comcare concedes that Mr Haywood suffered an adjustment disorder which was contributed to, to a significant degree, by his employment by the Department. That means that his 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 Mr Haywood’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. If it was, it is excluded from the definition of “injury” in s 5A, and Comcare is not liable to pay him compensation. If it was not, Comcare is liable to pay him compensation under s 14. The parties agree that, if Mr Haywood’s disease is an injury for the purposes of the SRC Act, the date of that injury is 24 July 2012—the date when he first sought medical treatment for the disease.[1][1] See SRC Act, s 7(4). In Smith v Comcare (2013) 212 FCR 335 the Full Court of the Federal Court explained that the question of liability under s 14 should be decided before considering the potential operation of s 7(4): at 342 [34] per Buchanan J, with whom Greenwood J agreed (at 336 [1]); and at 346–347 [54] per Bromberg J. This is because, if the condition is excluded under s 5A, there is no injury for the purposes of the Act and, therefore, no injury for s 7(4) to apply to.People involved I have before me statements from the following people who worked for the Department at relevant times:·Mr Haywood, who worked in the Department’s International Wildlife Trade Section (the IWT);·Ms Joanne Beath, who was head of the IWT and Mr Haywood’s supervisor;·Ms Deb Callister, who was head of the Wildlife Branch and Ms Beath’s supervisor;·Ms Nina Thappa, who was a colleague of Mr Haywood’s in the IWT, and had acted as head of the IWT for three months before Ms Beath took up the position;·Ms Melinda Pearce, who was a colleague of Mr Haywood’s in the IWT, but worked in a different team to Mr Haywood;·Mr Wes Spencer, who was acting head of the Department’s Environment Investigation Unit (the EIU) and, later, was head of the Department’s Professional Standards Section (the PSS); and·Ms Elizabeth Oliver, who was a union delegate.All of these people, except for Ms Thappa, gave evidence at the hearing. Another person also gave evidence at the hearing:·Mr Matthew McCorry, who worked in the IWT and was supervised by Mr Haywood.The following person was involved in events relevant to this review, but did not provide a statement or give evidence at the hearing:·Mr Paul Monagle, who worked in the Department’s human resources area.

Ratio Decidendi

Legal Principle Established

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