Hickey and Australian Postal Corporation (Compensation)
[2018] AATA 3930
•18 October 2018
Hickey and Australian Postal Corporation (Compensation) [2018] AATA 3930 (18 October 2018)
Division:GENERAL DIVISION
File Number(s): 2015/0729
2015/3786
Re:Kim Hickey
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Member L M Gallagher
Date:18 October 2018
Place:Perth
Application 2015/0729
The Tribunal affirms the decision under review.
Application 2015/3786
The Tribunal finds that it does not have jurisdiction to review the decision.
...[sgd].................................................................
Member L M Gallagher
CATCHWORDS
COMPENSATION – Commonwealth employee – depression – whether liable under section 14 – whether depression contributed to, to a significant degree, by employment – whether depression suffered as a result of reasonable administrative action taken in a reasonable manner – decision under review affirmed
COMPENSATION – Commonwealth employee – L5/S1 disc-prolapse on the left with a sequale of soft tissue injury right foot – whether no present liability under sections 16 and 19 – no jurisdiction to review determination
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43, s 43(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4(1), s 5A(1), s 5A(2), s 5B,
s 5B(1), s 14, s 14(1), s 16, s 19, s 54(1), s 54(2), s 60(1), s 62(1), s 62(4), s 64CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martin (2016) 258 CLR 467
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Cross and Comcare [2018] AATA 52
Drenth v Comcare (2012) 128 ALD 1; [2012] FCAFC 86
Georges and Telstra Corporation Limited [2009] AATA 731
Golds v Comcare [1999] FCA 1481
Lim and Comcare [2015] AATA 189
Lock and Comcare [2018] AATA 2386Re Lynch v Comcare (2010) 114 ALD 394
SECONDARY MATERIALS
Sutherland P, Ballard JO, Anforth A, Annotated Safety, Rehabilitation and Compensation Act 1988 (11th ed, The Federation Press and SoftLaw Community Projects, 2018)
REASONS FOR DECISION
Member L M Gallagher
18 October 2018
APPLICATIONS
Mr Hickey seeks the review of two decisions made by delegates of the Australian Postal Corporation (“APC”). Two separate applications were made and heard together. They are:
Application 2015/0729
On 12 November 2014 (R1, T36), a delegate of the APC affirmed a determination dated 31 July 2014 (R1, T26), which determined that the APC was not liable to pay compensation to Mr Hickey under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in relation to a claimed injury described as “depression.”
On 13 February 2015, Mr Hickey applied to the General Division of the Administrative Appeals Tribunal (“Tribunal”) for a review of the APC’s determination dated 12 November 2014 (R1, T1). This is Application 2015/0729.
Application 2015/3786
On 30 June 2015 (R2, T110), a delegate of the APC affirmed a determination dated 15 January 2015 (R2, T109) in relation to Mr Hickey’s “L5-S1 disc prolapse on the left with a sequale of soft tissue injury right foot” which determined that the APC had no present liability to pay compensation under sections 16 and 19 of the SRC Act.
On 28 July 2015, Mr Hickey applied to the Tribunal for a review of the APC’s determination dated 30 June 2015 (R2, T1). This is Application 2015/3786.
BACKGROUND
Mr Hickey was born in 1958.
Mr Hickey has been employed by the APC for approximately 25 years. In or around 1993, Mr Hickey worked as a Postal Transport Officer (“PTO”) (R2, T7, page 21).
On 27 September 1993, Mr Hickey signed an incident report which stated that on that day he had “pain in lower back, servere [sic] when lifting left leg” following his attempt to pull a hanging mailbag, that was three quarters full, up and away from the mail bag hooks in a street pillar post box (R2, T5, page 18).
On 28 September 1993, Dr A Perse (General Practitioner) provisionally diagnosed Mr Hickey with facet joint irritation (R2, T6).
On 7 October 1993, Mr Hickey lodged a claim for rehabilitation and compensation regarding the injury he claims to have suffered on 27 September 1993 (R2, T7).
On 18 October 1993, the APC accepted liability under section 14 of the SRC Act for Mr Hickey’s injury suffered on 27 September 1993, then described as “facet joint irritation” (R3, ST2). The determination dated 18 October 1993 also accepted liability under section 19 of the SRC Act for the period from 28 September 1993 to 5 October 1993.
With regard to section 16 of the SRC Act, the determination dated 18 October 1993 stated that “[a]ny reasonable medical expenses for your accepted work related condition will be considered for payment.” It is unclear to the Tribunal whether the expression “will be considered for payment” is an expression of acceptance of liability under section 16 of the SRC Act by the APC and no arguments were canvassed by the parties in this regard, either in writing, or at hearing.
On the evidence before it, the only two instances where it appears that Mr Hickey made a claim for medical expenses under section 16 of the SRC Act in relation to his “L5/S1 disc prolapse on the left” is for, firstly, travel costs on 12 November 2012 and a series of invoices for household maintenance services (lawn mowing, gardening) provided between 7 November 2011 and 23 November 2012 (R2, T86). It appears that Mr Hickey had provided copies of the relevant invoices in this regard (R2, T87). The second instance relates to a claim for a pair of air sole shoes with inner arch support, which was accepted by the APC on 28 June 2010. These expenses were the subject of determinations by the APC dated 21 December 2012 (R2, T86) and 28 June 2010 (R2, T81) for which it determined it was liable under section 16 of the SRC Act to compensate Mr Hickey.
Similarly, the only instance where it appears that Mr Hickey made a claim for compensation under section 19 of the SRC Act in relation to his “L5/S1 disc prolapse on the left” was for the closed period from 28 September 1993 to 5 October 1993 (R3, ST2).
Therefore, in the Tribunal’s view, it cannot be said that the APC’s determination dated 18 October 1993 was one which had the effect of determining more generally that the APC was presently liable, as at that date, to pay compensation to Mr Hickey under sections 16 and 19 of the SRC Act. Rather, the Tribunal considers the determination dated 18 October 1993 determined the APC’s liability under section 14 of the SRC Act. Indeed the APC has taken the same view in its determination dated 30 June 2015 (R2, T110), which refers to liability for section 14 only having been accepted on 18 October 1993 and that claims pursuant to sections 16 and 19 of the SRC Act would be considered on a case by case basis, as and when they were made (one under section 19 of the Act already having been, in effect, made, for the closed period in the determination).
By determination dated 16 June 1994, the characterisation of Mr Hickey’s injury, suffered on 27 September 1993, was amended to “L5/S1 disc prolapse on the left” (R3, ST3). By determination dated 11 March 2010, the characterisation of Mr Hickey’s injury suffered on 27 September 1993 was further amended to “L5/S1 disc prolapse on the left and a sequale of soft tissue injury (R) foot” (R2, T80).
On 21 August 1995, Mr Hickey commenced a graduated return to work program undertaking mail sorting duties at Rockingham Postal Distribution Centre (R2, T27).[1]
[1] The Tribunal notes that the Rockingham Postal Distribution Centre is referred to interchangeably in the decision as the “Rockingham Distribution Centre” and the “Rockingham Delivery Centre” depending on how it is described by various individuals. The Tribunal understands both names refer to the same premises.
Mr Hickey was reported to be fit to return to full-time restricted duties from 17 August 1998 (R2, T52, page 132 and duplicate page 133).
On 7 February 2000, it was reported that Mr Hickey “…continues to work on a full time basis at the Rockingham Delivery Centre and currently administers all of Australia Post’s motor vehicle accident records relating to property damage for the whole of the state… [he] is no longer box sorting or van driving… but he does supplement his MVA record keeping tasks with mail presequencing [sic] (ABC’s) should a Postal Delivery Officer be absent” (R2, T62, page 147).
On or around November 2007, the APC created a new position for Mr Hickey as a Fleet Support Officer (A3), Administration Section, Transport Division, Mail & Networks Division, Position No, 723131 (R2, T70).
On 12 January 2011, Mr Paul Ryan (Clinical Psychologist) reported to Mr Hickey’s referring General Practitioner (“GP”), Dr Mahomed Essa Rasool, that (R2, T82, page 183):
As you would be aware Mr Hickey has been in dispute with his employer with respect to his role and being suitably reimbursed for the duties that it encompasses. Currently he broadly feels that the complexity of the role is not being recognized or validated by management and he said that likely due to his complaints it has been suggested his role would be outsourced. He said that within his work he felt isolated and marginalized…
…Overall Mr Hickey presents with an adjustment disorder with depressed mood this occurring in reaction to the circumstances detailed arising out of his original injury and its ongoing ramifications in his daily life. Clearly one of the drivers of Mr Hickey’s feelings of depression is his sense of helplessness to affect or change a situation which is psychologically demanding on him…
In his report dated 15 November 2012, Dr Brian Dare (Consultant Occupational Physician) noted that (R2, T85, page 188):
[Mr Hickey] stated that he had only been working with Australia Post for approximately six months prior to his back injury when he was driving trucks involved in the picking up and unloading of mail bags from mailboxes.
As a result of his back injury, he did not return to truck driving and was off work for at least two years, and was then redeployed into administration, initially working at the Rockingham distribution centre and then moved more into administration, managing the vehicle accident claims.
He was doing this fulltime [sic] until two years ago, when he was reduced down to 20 hours per week. He stated that more recently the job has been outsourced and he has been involved in assisting with the outsourcing of the work. He stated that that work has not come to an end and he is looking at being redeployed elsewhere.
On 13 February 2014, Mr Hickey signed an incident report form which stated that he suffered from “depression”, the symptoms of which had developed “gradual [sic] over a period of years” and for which treatment commenced on 20 August 2013 (R1, T4, page 13). Mr Hickey stated on the incident form that what had happened was “exclusion, indifference and lack of acknowlegment [sic] and reward” (R1, T4, page 15).
In an email to APC dated 14 February 2014, Mr Hickey elaborated on a number of the matters in his incident report form dated 13 February 2014 (R1, T8). Mr Hickey said that he “…cannot define a specific point in time when I first became affected by depression, only that its development was most probably initiated after a meeting I attended sometime in 2006 held between myself, then manager of WA Transport Division, Jim Rolt, and then newly appointed admin manager of WA Transport, Chris Morgan” (R1, T8, page 30).
On 14 February 2014, Mr Hickey lodged a claim for compensation for “depression,” which he claimed to have developed over time and with treatment having commenced on 20 August 2013 (R1, T3, page 10).
The Tribunal notes that in Mr Hickey’s witness statement (A1, paragraph 63), he described the meeting (that took place in or around late 2006) outlined in his claim for compensation as:
Eventually Jim Rolt came to the Rockingham Distribution Centre and we went for a coffee. I opened the meeting explaining that at the time I was still been [sic] paid as a Truck Driver. I explained that I had no development and no performance review ever, and under the current arrangements I could see no career prospects within the business.
Jim Rolt’s response was, verbatim:
“Under the Safety, Rehabilitation and Compensation Act of 1988 Australia Post has an obligation to provide you with meaningful work. In fulfilling the position you currently hold for Australia Post, Australia Post has fulfilled its obligation to you, and what you are currently experiencing is a tragedy of your own circumstance.”
On 4 March 2014, Dr Rasool (General Practitioner) provided a medical certificate which stated that “Mr Hickey was probably depressed for many years. He was extremely depressed on the 20/08/2013 and was started with antidepressants and referred for depression to Dr Haroon Riaz a Psychologist” (R1, T9, page 34).
At APC’s request, Mr Michael Alexeeff (Orthopaedic Surgeon) assessed Mr Hickey on 18 March 2014. Mr Alexeeff’s related report dated 21 March 2014, states, among other things, that (R2, T100, pages 248 to 250):
…There was no evidence of congenital, constitutional or development pathology. Obviously, [Mr Hickey] did sustain discogenic injury at the L5/S1 level in 1993. It would appear that radicular symptoms settled in due course, with this being in keeping with the natural history of this pathology in approximately 70% of individuals. As a consequence, [Mr Hickey] has maintained symptoms of mechanical back pain, with this to some degree, being more related to the progressive nature of this pathology, rather than any disc pathology localised to the lumbo-sacral junction…
…given the passage of time since the original injury on 27th September 1993 (date of injury), with it likely that [Mr Hickey] did sustain an L5/S1 disc protrusion [Mr Hickey’s] circumstances from this would have improved within a given timeframe or he would have required surgery…
Notwithstanding that [Mr Hickey] was redeployed, I am of the view that [Mr Hickey’s] symptoms related to the radicular presentation probably settled within a given timeframe, with [Mr Hickey] returning to employment in August 1995. His status now does not reflect a radicular presentation.
On 10 April 2014, Dr Rasool (General Practitioner) certified Mr Hickey as unfit for work as a result of his depression, low back pain and right foot pain (R1, T11). Mr Hickey did not return to work after this date.
On 21 May 2014, at APC’s request, Mr Hickey attended Dr Peter McCarthy (Consultant Forensic Psychiatrist) for a medico-legal assessment. In Dr McCarthy’s related report, dated 16 June 2014, he diagnosed Mr Hickey with major depressive disorder of moderate severity and now in partial remission (R1, T22, page 66). Dr McCarthy then gave the following opinion as to the factors that have likely contributed to Mr Hickey’s condition (R1, T22, pages 67 and 68):
Mr Hickey has become enmeshed in the workers compensation process… He has been disappointed by subsequent experiences in the workplace, particularly losing his niche that he was able to carve out for himself over an eight year period in motor vehicle insurance administration.
He feels that his talents have not been adequately used in the last two years however he is currently off work with an exacerbation of his depression as a result of his being informed that his workers [sic] compensation claim for his back was being reviewed and possibly denied. The latter is 60% responsible for his current depressed mood. I think that at different periods over the last 20 years various events, whether life events or work events, have contributed to an exacerbation of his mood from time to time. He was vague over whether his mood had actually ever completely settled over the last 20 years.
I think personality factors have had and continue to have a significant contributing role in the genesis and maintenance of his psychiatric disorder, constituting a 40% contribution to his current psychiatric state.
On 31 July 2014, a delegate of the APC determined it was not liable to pay compensation under section 14 of the SRC Act for Mr Hickey’s “depression” condition (R1, T26). The APC relied on the evidence provided by Drs Rasool and McCarthy (refer to paragraphs 29 and 30 above) in forming the view that it was unable to establish that Mr Hickey’s employment with the APC had “…caused or contributed to [Mr Hickey’s] condition in a significant degree, as required by s5B of the [SRC] Act.”
On 25 August 2014, Mr Hickey requested reconsideration of the APC’s determination dated 31 July 2014 (R1, T31, T32 and T33).
On 12 November 2014, a reconsideration delegate of the APC affirmed the determination dated 31 July 2014 (R1, T36). The delegate was not satisfied that Mr Hickey reported his “injury” as soon as practicable after becoming aware of it and accordingly found that section 53 of the SRC Act applied. The delegate was not persuaded that Mr Hickey’s claimed psychological condition was “work-related” in accordance with the SRC Act. The delegate found that if she had accepted that Mr Hickey had suffered an “injury” as defined (which she did not), she was satisfied that any rights that Mr Hickey may have had to compensation benefits would be excluded on the basis of the exclusionary provision protecting employers’ rights to undertake reasonable administrative action (“RAA”) in a reasonable manner, as defined in section 5A of the SRC Act.
In his application to the Tribunal for a review of the APC’s determination dated 12 November 2014, Mr Hickey states that he considers that determination to be wrong on the basis that (R1, T2, page 2):
Both APC’s decisions are wrong being based soley [sic] upon the confirmation bias driving their approach and influencing the opinions of their alledgedly [sic] “independent” medical reviewers via omissions of facts and crusial [sic] information and misrepresentation of truths based upon groundless conclusions.
On 15 January 2015, a delegate of the APC determined that as of that date, there is no present liability for compensation benefits in respect of Mr Hickey’s “L5-S1 disc prolapse on the left with a sequale of soft tissue injury right foot” sustained on 27 September 1993, pursuant to sections 16 and 19 of the SRC Act (R2, T109). The delegate stated that the determination was based on the contents of Mr Alexeeff’s medical report and on no additional information having been provided by Mr Hickey or by Dr Rasool in response.
On 24 June 2015, Mr Hickey requested reconsideration of the APC’s determination dated 15 January 2015 (referred to in R2, T110).
On 30 June 2015, a reconsideration delegate of the APC affirmed the determination dated 15 January 2015 (R2, T110). The delegate stated that she agreed with the reasons for the decision made in the initial determination and that there was nothing further provided in the request for reconsideration to persuade her otherwise.
In his application to the Tribunal for a review of the APC’s determination dated 30 June 2015, Mr Hickey states that he considers that determination to be wrong on the basis that (R2, T1, page 7):
Both the initial and reviewing officers acting on behalf of Australia Post, have based their decision to cease ongoing worker’s [sic] compensation payments relating to the back injury sustained by me on 27/09/1993, upon a single medical report obtained by Australia Post, as a result of their charter of Mr Michael Alexeef [sic], to conduct a medical review which was undertaken by him on 18/03/2014. I disagree with the many assertions contained within Mr Alexeef’s [sic] report. I firmly believe the opinions expressed by Mr Alexeef’ [sic] in his report, reflect a heavy ‘confirmation bias’ which had been purposefully influenced by Australia Post Claims Management section, WA, in their selection of information provided, and withheld from Mr Alexeef [sic], prior to him undertaking his examination.
On 20 September 2016, Mr Hickey’s solicitors arranged for Mr Hickey to be assessed by Dr Ng (Psychiatrist). Dr Ng’s related report of the same date (A14) diagnosed Mr Hickey with a Major Depressive Disorder (A14 at page 17). Dr Ng considered that the history that Mr Hickey provided, including resentment with working at a higher level than that for which he was paid, and the outsourcing of his role, would have to one extent or another exacerbated and perpetuated any depressive and anxiety symptoms suffered by him. Dr Ng considered that Mr Hickey suffered added distress and an exacerbation of depression and anxiety when the APC revisited his ongoing physical difficulties and sent him to an orthopaedic surgeon in 2014 (A14 at page 16).
The APC arranged for Dr Terace (Psychiatrist) to review Mr Hickey on 12 October 2016. In his resulting report dated the 26 October 2016 (R9), Dr Terace expressed the opinion that Mr Hickey suffered from symptoms of pre-existing ADHD of adulthood, or alternatively Major Depressive Disorder which was in partial remission and relatively modest in severity. Dr Terace said the following, in relation to causation (R9 at page 38):
…there is probably insufficient evidence on the balance of probabilities to support his condition at that time was a product of the workplace, and rather, at that time, it was probably a product of his constitution and pre-existing disorders interacting with his perception of the Workers’ compensation claim process itself and its denial, rather than the industrial grievances he even had at that time – such that I would argue that his condition at that time was not and never a product of the workplace (original emphasis).
On 18 January 2017, Dr Rasool (General Practitioner) reported that he considered Mr Hickey’s claimed psychiatric condition was related to his employment, including various issues such as the outsourcing of his role (A2).
In his report dated 24 February 2017 (A12), Dr Riaz (Psychiatrist) noted that Mr Hickey came under his care in May 2011 for his ADHD, a non-work-related condition. In that report, Dr Riaz noted that around late 2013, Mr Hickey’s situation became somewhat complicated because the APC began outsourcing the work he was doing and with almost complete withdrawal of his work, he became extremely depressed (A12 at page 2). Dr Riaz also noted that Mr Hickey’s contact with him after 2015 decreased to a point that he had not seen him for a whole year prior to when he saw him at Mr Hickey’s solicitors’ request on 23 February 2017.
LEGISLATION
The APC’s general liability to pay compensation is set out in section 14 of the SRC Act. Subsection 14(1) of the SRC Act provides that:
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.
Subsection 5A of the SRC Act defines “injury” as follows:
(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 disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action, is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in accordance with his or her employment.
“Disease” is defined in section 5B of the SRC Act as follows:
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
The Tribunal notes the discussion of the meaning of “contributed to, to a significant degree” in paragraphs 128 to 135 of Deputy President Boyle in the decision of Cross and Comcare [2018] AATA 52 (the “Cross decision”):
Meaning of “contributed to, to a significant degree”
128. The key issue with establishing a compensable “disease” under the Act is that the employee must prove that the employment contributed, to a significant degree, to the disease.
129. Previously, the Act defined “disease” to mean an ailment or aggravation that was “contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”. The significant degree threshold was inserted on 13 April 2007 in response to Parliament’s view that [sic] way in which the courts had interpreted the phrase “material degree” under the previous definition of “disease” had had the effect of significantly reducing the extent to which employment must have contributed to a disease for it to be compensable.
130. Relevantly, the Explanatory Memorandum to the Safety, Rehabilitation And Compensation And Other Legislation Amendment Bill 2006 states:
The initial legislative intent was to establish a test requiring a claimant to prove that his or her employment was ‘more than a mere contributing factor in the contraction of the disease’ (see the Second Reading speech to the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 – subsequently renamed as the SRC Act). The phrase ‘contributed to in a material degree’ was intended to ensure that the Commonwealth was not liable to pay compensation for diseases which have little, if any, connection with employment
However, the courts have read down the expression ‘in a material degree’ to emphasise the causal connection between the employment and the condition complained of rather than the extent of the contribution. The purpose of the proposed amendment is to assist in reinstating the intended policy behind the Commonwealth workers’ compensation scheme by limiting access to compensation claims for diseases to which work has only made a very minor contribution.
131. The Full Court of the Federal Court in Dunstan v Comcare [2011] FCAFC 108 noted that the intention of changing the threshold was “to impose a more stringent test of the causal relationship between employment and disease”. The Court said that the test was intended to be broader than the “daily duties, or specific aspects of the workplace environment” and was intended simply to refer to “employment as a factor that operated actively to bring about the condition” (Dunstan at [40]).
132. “Significant degree” is defined in s 5B(3) of the Act to mean “a degree that is substantially more than material”.
133. In Crouch v Comcare [2013] AATA 608, Deputy President Handley stated at [40]:
A “significant degree” means “substantially more than material” (s 5B(3)) in a context where “material” in itself means something of substance (see above Sahu-Khan).
134. In Comcare v Power [2015] FCA 1502, Judge Katzmann relevantly stated that:
[78] A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.
...
[83] In Comcare v Canute (2005) 148 FCR 232; 89 ALD 258; [2005] FCAFC 262 at [68] (Canute), however, French and Stone JJ took issue with the application of this approach to the definition of “disease” in the SRC Act. Although their Honours accepted that a “but for” test was inappropriate, after referring to the Minister’s second reading speech on the introduction of the Bill which became the SRC Act, they said:
the changes brought about by the enactment of the SRC Act were intended to require that the contribution be “more than a mere contributing factor” ... Content must be given to the word “material” contained in the definition of “disease” in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded.
…
[85] In Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15 at [14] (Sahu-Khan) Finn J observed that the legislative history of the definition of “disease” makes it plain that the term “material” in the phrase “in a material degree” in the SRC Act was not used to denote a contribution which was only greater than de miminis. Thus, it appears that, despite the common law approach to “material contribution”, the intention of the SRC Act was that the contribution of the employment to the disease of an afflicted employee had to be not just greater than trivial. In Sahu-Khan Finn J noted (at [15]) that the Shorter Oxford English Dictionary defined “materially” to include “substantially” and “considerably”.
...
[93] There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial...
[94] Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention... While the chapeau to the subsection states that those matters “may“ (not “shall“) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that “may“ means “shall“...
135. The Tribunal also notes the following comments made by Member Taglieri in Reardon and Comcare [2015] AATA 360:
[35] This has been settled in law and it requires the contribution by employment to be substantially more than “material”.
[36] In Su v Comcare the requirement of contribution to a significant degree was expressed as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn:
“When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded“[4]. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.”
[37] I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.
(Original emphasis)
The term “ailment” is defined in subsection 4(1) of the SRC Act to mean:
…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
In relation to compensation for medical expenses, subsection 16(1) of the SRC Act relevantly provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 of the SRC Act provides that the APC (as a licensee) is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. Section 19 of the SRC Act also sets out the formula for calculating the amount of compensation to which a relevant employee is entitled.
Compensation is not payable to a person under the SRC Act unless a claim for compensation is made by or on behalf of the person in the approved form (subsections 54(1) and 54(2) of the SRC Act).
In relation to reconsideration of determinations, section 62 of the SRC Act relevantly provides:
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; …
…
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in, the making of the determination…
Subsection 64(1)(a) of the SRC Act provides that an application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by the claimant.
“Determination” means a determination, decision or requirement made under (relevantly and among other sections) sections 14, 16, and 19 of the SRC Act (subsection 60(1) of the SRC Act).
“Reviewable decision” means a decision made under subsection 38(4) or section 62 of the SRC Act (subsection 60(1) of the SRC Act).
PRINCIPLES RELATING TO REASONABLE ADMINISTRATIVE ACTION
Where an “injury” has more than one causative factor
In Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 (the “Reeve decision”), Gray J stated at paragraph 24 that:
…it is necessary to bear in mind the principle that is taken to have been established by Hart v Comcare (2005) 145 FCR 29 at [21]–[23]. That principle is that, however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury. It follows that the more broadly the exclusion is construed, the more destructive it becomes of the right to compensation afforded by the SRC Act…
Causation in the context of reasonable administrative action – a “disease” suffered “as a result of” reasonable administrative action
In Comcare v Martin (2016) 258 CLR 467, French CJ and Bell, Gageler, Keane and Nettle JJ espoused the following principles relating to causation in the present context:
[42] Causation in a legal context is always purposive [Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at 530 [137]]. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose [Travel Compensation Fund v Tambree (2005) 224 CLR 627 at 639 [28]. See also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 at 582 [42]]. It has been said more than once in this Court that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, legal norm [Travel Compensation Fund v Tambree (2005) 224 CLR 627 at 642 [45], citing Allianz Australia Insurance Ltd v GCF Australia Pty Ltd (2005) 221 CLR 568 at 596-597 [96]-[97]]. Nevertheless, the majority in the Full Court construed the phrase “as a result of” in s 5A(1) as importing a “common sense” notion of causation. That construction, with respect, did not adequately interrogate the statutory text, context and purpose.
[43] Within a statutory context which includes ss 5A and 5B, the exclusionary phrase “as a result of” in s 5A(1) is naturally read, not as imposing its own separate and free-standing test of causation, but rather as referring relevantly to the test of causation spelt out in s 5B(1).
[44] The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee’s employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee “as a result of” reasonable administrative action taken in a reasonable manner in respect of the employee’s employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee’s employment which answers that description of reasonable administrative action.
[45] When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.
[46] That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to “ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation” and as including, in particular, to prevent claims “being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of” such action [Australia, House of Representatives, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, Explanatory Memorandum at pp iv, v.]. The taking of administrative action in respect of an employee’s employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee’s reaction.
[47] Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.
[48] The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence — whether personal or professional, direct or indirect, real or imagined — is beside the point.
(Emphasis added)
Whether an action is an administrative action
In Re Lim and Comcare [2015] AATA 189 (the “Lim decision”) Senior Member Popple summarised the principles regarding what are and what are not administrative actions as follows:
[13] I have summarized below the principles that relate to s 5A of the SRC Act, and which are applicable to this review. There is some overlap between the summary points.
· The following are administrative actions:
o an action with respect to the employee as employee;
o an action with respect to the employment relationship that the particular employee has with the employer; and
o taking steps under a contract of employment.
· The following are not administrative actions:
o an action with respect to the duties that an employee is employed to carry out;
o defining or delimiting or supervising the employment, job or task entrusted to an employee for them to perform;
o giving directions to them as to how and when they are to perform it; and
o matters of general administration, management and the implementation of policy, even if they affect the employment of employees.
In Re Lynch v Comcare (2010) 114 ALD 394 (the “Re Lynch decision”), the Tribunal provided the following guidance in determining whether an action is an administrative action for present purposes:
“Administrative action”
[98] What amounts to “administrative action” is defined only to the extent of the examples given in s 5A(2). These refer to performance appraisal, counselling, suspension or disciplinary action and “anything done in connection with” any of these examples (Section 5A(2)(e) of the Safety, Rehabilitation and Compensation Act). The examples are not exhaustive and the words “in connection with” have been interpreted as words which “have an ambulatory significance capable of a wide range of applications” (Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414; 243 ALR 606; 99 ALD 443; [2007] FCAFC 203 at [106] per Black CJ, French and Weinberg JJ.) These indications imply that “administrative action” is capable of having a broad meaning.
[99] To date, the case law has largely been based on cases arising under the expression “administrative action” in comparable legislation, in particular in South Australia, the Northern Territory and in Tasmania (Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 (Summers); Abrahams v St Virgil’s College (1998) 7 Tas R 423; [1998] TASSC 53; Wattyl Australian Pty Ltd v York [1997] NTSC 86; HIH Winterthur Workers Compensation (SA) v Hickman [1997] SAWCT 17). In summary, the cases establish that administrative action can be constituted by a series of actions as opposed to merely one action. But if the injury arises from the worker’s inability to comply with the ordinary demands of the workplace — for example, the nature of the work causes stress — rather than from some specific instruction or demand of the employment, the expression has no application. As Doyle CJ said in Summers:
[T]he words … “administrative action” do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties …(Summers at 247).
[S]tress caused by an inability to cope with the job itself … is not stress which arises wholly or predominantly from administrative action taken by the employer in connection with the worker’s employment (Summers at 248).
[100] In other words, “administrative action” must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer. Applying these principles to the circumstances faced by Mr Lynch, the tribunal finds that not only action by management itself in instituting disciplinary procedures, but also the action of Mr Lynch’s fellow employees which set in train the management action, that is, something done “in connection with” disciplinary action, are capable of being categorised as “administrative action” for the purposes of the Act.
(Emphasis added)
Whether the administrative action is in respect of the employee’s employment
In the Reeve decision, the Federal Court addressed the phrase “in respect of the employee’s employment” as follows:
[60] The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists — the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be…
The reasonableness of the administrative action and whether the administrative action was taken in a reasonable manner
Whether something is reasonable or not, or whether it was undertaken in a reasonable manner is a question of fact (Drenth v Comcare (2012) 128 ALD 1; [2012] FCAFC 86 at paragraph 26).
Whether an administrative action is reasonable imports an objective judgment (Comcare v Martinez (No 2) (2013) 212 FCR 272, Robertson J at paragraph 82).
Whether a reasonable administrative action was taken in a reasonable manner is not established solely on the basis of the impact on the employee. There may be more than one way of doing things “reasonably“. It does not matter that the thing could have been done more reasonably (the Lim decision at paragraph 13).
In the Re Lynch decision, the Tribunal discussed the requirement for “reasonable” administrative action “taken in a reasonable manner” as (summarised in Sutherland P, Ballard JO, Anforth A, Annotated Safety, Rehabilitation and Compensation Act 1988 (11th ed, The Federation Press and SoftLaw Community Projects, 2018) at page 114 [5A.05]):
· Reasonable disciplinary action must be assessed in the light of the rules of conduct or behaviour which apply to and are enforceable against an employee by virtue of their employment with the Commonwealth (at [104]).
· What is reasonable is assessed objectively and relates to the specific conduct involved (at [106]).
· For action to be reasonable, it must be established that there was nothing “untoward” about the actions involved. The actions must also not be “irrational, absurd or ridiculous” (at [107]).
· For administrative action to be reasonable it must comply with the requirements of natural justice. In matters concerning allegations against an applicant, the applicant is entitled to the level of particularity in the complaints that would permit the applicant to understand the case against him and a reasonable opportunity to respond (at [132]-[135]).
(Emphasis added)
ISSUES
Application 2015/0729 – the issue
The issue for the Tribunal in relation to Application 2015/0729 is whether the APC is liable to pay Mr Hickey compensation pursuant to section 14 of the SRC Act from 31 July 2014 in respect of his “depression” condition.
The issue at paragraph 64 above in turn requires the Tribunal to consider:
(a)whether Mr Hickey suffered from an “ailment” as defined in subsection 4(1) of the SRC Act, at the relevant time?
(b)if so, whether that ailment is an “injury” as defined in section 5A of the SRC Act, being either:
(i)a “disease” (subsection 5A(1)(a) of the SRC Act, as defined in subsection 5B(1) of the SRC Act, being an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree, by Mr Hickey’s employment with the APC); or
(ii)an injury or an aggravation of an injury (other than a disease) arising out of, or in the course of, Mr Hickey’s employment with the APC, as defined in subsections 5A(1)(b) and 5A(1)(c) of the SRC Act.
(c)if so, whether that “injury” as defined is a disease, injury or aggravation suffered as a result of RAA taken in a reasonable manner in respect of Mr Hickey’s employment, so as to exclude it from the definition of “injury” in accordance with subsection 5A(1) of the SRC Act (the “RAA exclusion”).
During the hearing, the parties reached agreement based on the evidence that Mr Hickey’s claimed psychological condition was an ailment, that was contributed to, to a significant degree, by his employment with the APC and hence, it was a “disease” as defined. As such, the parties maintain that the key issue before the Tribunal in relation to Application 2015/0729 is whether the RAA exclusion serves to apply to Mr Hickey. If not, then Mr Hickey satisfies section 14 of the SRC Act in respect of his “depression” condition and the APC would be liable to pay him compensation.
The Tribunal emphasises that it has performed the exercise of considering matters relating to the RAA exclusion based on the parties’ agreement of the existence of a “disease” under section 5B of the SRC Act, as it was unable to be so satisfied on its own assessment of the available medical evidence (refer to paragraphs 367 to 388 below).
The Tribunal has concluded below that the “2007 review” (as it has been characterised in paragraph 449 below) was reasonable administrative action, undertaken in a reasonable manner in respect of Mr Hickey’s employment and therefore Mr Hickey’s depression condition is excluded from the definition of “injury” in accordance with subsection 5A(1) of the SRC Act.
Accordingly, the Tribunal has not gone on to consider whether:
(a)the remaining actions identified by the parties as the relevant administrative actions (refer to the Agreed Facts 2 to 4 set out at paragraph 363 below) were also “in respect of” Mr Hickey’s employment, and if so, whether those administrative actions were reasonable and/or undertaken in a reasonable manner; and
(b)the action identified by the parties in Agreed Fact number 5, being the outsourcing of Mr Hickey’s position, amounts to administrative action for the purposes of subsection 5A(1) of the SRC Act (which was the subject of argument between the parties); and if so,
(i)whether that administrative action was “in respect of” Mr Hickey’s employment; and if so,
(ii)whether that administrative action was reasonable and/or undertaken in a reasonable manner.
In the circumstances, the Tribunal is not required to do so (refer to paragraphs 55 to 56). Nevertheless, the Tribunal has set out the facts as they relate to the matters that the parties have identified as the relevant actions (in the Agreed Facts) in order to preserve the chronology and completeness of the factual picture.
The Tribunal’s consideration of the issues in relation to Application 2015/0729 is at paragraphs 363 to 459 below.
Application 2015/3786 – the issue and the Tribunal’s jurisdiction
Mr Hickey’s Statement of Issues, Facts and Contentions identify the issue in respect of Application 2015/3786 to be:
7. Whether or not the Applicant continues to suffer from the effect of an injury to his lower back and right foot as a result of the injury sustained on 27 September 1993, previously accepted and described by the Respondent as “L5/S1 disc prolapse on the left and a sequale of soft tissue injury (R) foot”;
8. The Applicant’s entitlement to weekly compensation payments pursuant to Section 19 of the Safety, Rehabilitation and Compensation Act 1988;
9. The duration and quantum of any weekly compensation payable to the Applicant;
10. The Applicant’s entitlement to the provision of a rehabilitation program pursuant to section 37 of the Safety, Rehabilitation and Compensation Act 1988;
11. The Applicant’s entitlement to medical treatment costs and travel expenses pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988;
(Original emphasis)
Mr Hickey’s written closing submissions state the issue in respect of Application 2015/3786 to be:
2. The central question in respect of the back injury is whether the effects of the work injury suffered on 27 September 1993 have ceased.
…
6. The issue is whether Mr Hickey [sic] still suffering the effects of the lower back injury: para [41] of the Respondent’s SOFIC[2].
[2] Paragraph 41 of the APC’s Statement of Facts, Issues and Contentions contends that Mr Hickey no longer suffers from the effects of his compensable low back injury sustained on 27 September 1993.
The APC’s Statement of Facts, Issues and Contentions identify the issue in respect of Application 2015/3786 as follows:
Application No. 2015/3786 – Low back condition
35. Have the effects of any compensable low back injury sustained on 27 September 1993 resolved or ceased?
36. If not, does the applicant continue to require medical treatment, for the purposes of section 16 of the SRC Act, in relation to any compensable low back injury sustained on 27 September 1993?
37. If not, does the applicant continue to suffer from incapacity for work, for the purposes of section 19 of the SRC Act, as a result of any compensable low back injury sustained on 27 September 1993?
The APC’s written closing submissions state the issue in respect of Application 2015/3786 to be:
2.2 Application 2015/3786
(a)From 15 January 2015 to date, whether the applicant obtained medical treatment in relation to the previously accepted low back injury (being treatment that it was reasonable for the applicant to obtain in the circumstances) for the purpose of s 16(1) of the SRC Act.
(b)From 15 January 2015 to date, whether the applicant suffered incapacity for work as a result of the previously accepted low back injury for the purpose of s 19(1) of the SRC Act.
(Original emphasis)
The end result of reviewing the parties’ statements of the issues for review at paragraphs 71 to 74 above is that it remains unclear to the Tribunal what the parties consider is the issue for determination arising out of the APC’s decision dated 30 June 2015 (R2, T110). The question of what the issue for the Tribunal is, is further muddied by the parties’ contentions as to what the Tribunal’s decision ought to be. For example:
(a)Mr Hickey submits that “the correct and preferable decision based on the evidence is Mr Hickey’s symptoms, need for treatment and incapacity, is as a result of the work injury he sustained on 27 September 1993” (Mr Hickey’s closing submissions, paragraph 69);
(b)Mr Hickey contends that the “decisions should be set aside and remitted back to the Respondent [for] further determination” (Mr Hickey’s closing submissions, paragraph 176);
(c)the APC contends that in the absence of an ongoing “injury”, Mr Hickey is not entitled to medical expenses pursuant to section 16 of the SRC Act or to incapacity payments pursuant to section 19 of the SRC Act (APC’s Statement of Facts, Issues and Contentions, paragraphs 46 and 47); and
(d)the APC contends that “the appropriate relief is to affirm the decision under review” and that “in the alternative and without concession, the appropriate course would be to remit the matter to the respondent to quantify the amounts of compensation payable (if any) under ss 16 and 19 of the SRC Act” (APC’s closing submissions paragraphs 122 and 123).
Generally speaking, it is within the Tribunal’s powers conferred on it under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review (as the APC contends it should) or to set aside the decision under review and remit the matter for reconsideration (as Mr Hickey contends it should).
However, what concerns the Tribunal in Application 2015/3786 is that the decision under review was made in the absence of:
(a)any specific claim for entitlement to compensation under sections 16 or 19 of the SRC Act to which the relevant determination has responded (refer in particular to paragraphs 11 to 15 above); or
(b)any entitlement to compensation under sections 16 or 19 of the SRC Act that was being paid at the time of the relevant determination, that had been the subject of a previous claim and determination in Mr Hickey’s favour (on which, in the present case, there is no evidence and no suggestion by either party that this was ever the case).
As noted at paragraph 4 above, the APC reconsideration delegate’s decision dated 30 June 2015 was relevantly that the APC had, as at 15 January 2015 (R2, T110 at page 267):
…no present liability for compensation under sections 16 and 19 of the SRC Act in respect of your claim for compensation for “L5-S1 disc prolapse on the left with a sequale of soft tissue injury right foot.”
In the recent decision of Lock and Comcare [2018] AATA 2386 (the “Lock decision”), presiding member Deputy President Boyle was faced with a reviewable decision that was similar to the present (and therefore, in effect, deemed “academic”) in the sense that it was made in the absence of any claim for any entitlement to compensation. The Tribunal’s observations and findings at paragraphs 79 to 86 below are guided by those of Deputy President Boyle in the Lock decision, in particular from paragraphs 77 to 87 (inclusive).
In addition to Mr Hickey not having claimed any present entitlement as at 15 January 2015 under sections 16 or 19 of the SRC Act, there is no evidence before (or submission made to) the Tribunal that the APC had previously made any determination of any such entitlements as at that date. As in the Lock decision,[3] it is therefore questionable whether what the APC did on 15 January 2015 (affirmed in the supposedly reviewable decision[4] of 30 June 2015) was to “reconsider a determination” for the purposes of subsection 62(1) of the SRC Act (extracted at paragraph 51 above).
[3] The Lock decision involved a purported reviewable decision to the effect that Ms Lock had, as at 25 October 2016, no present entitlement to compensation under sections 16 and 19 of the SRC Act.
[4] Subparagraph 1.2 of the APC’s written closing submissions states that application 2015/3786 “pertains to the respondent’s reviewable decision dated 30 June 2015.”
The Tribunal relies upon paragraphs 77 to 79 of the Lock decision in finding that it is not satisfied that it has jurisdiction to review the APC’s decision dated 30 June 2015 which is the subject of Application 2015/3786, as follows:
[77]… For the decision identified to be a “reconsideration of a determination” for the purposes of s 62(1) of the SRC Act, the Respondent would have had to have previously determined that as at 25 October 2016 the Applicant did have present entitlements to payment in respect of medical expenses under s 16 of the SRC Act and/or for incapacity payments under s 19 of the SRC Act. It had not made such determinations.
[78] Alternatively, to come within the meaning of a “determination” which the Applicant sought review of under s 62(2) of the SRC Act leading to a reconsideration under s 62(4) of the SRC Act, the determination of 25 October 2016 would had to have been a determination under s 16 or s 19 of the SRC Act (see definition of determination in s 60(1) of the SRC Act). In the absence of any relevant claims being made under s 16 or s 19 of the SRC Act for payment of such entitlements, it is difficult to see how what was done on 25 October 2016 could be considered to be a determination under s 16 or s 19 of the SRC Act for that decision to come within the operation of ss 62(2) to 62(4) of the SRC Act.
[79] The Tribunal’s power to review decisions is contained in s 64 of the SRC Act and is limited to reviewable decisions which are defined in s 60(1) of the SRC Act to mean “a decision made under subsection 38(4) or section 62”. The decision in this application was not a decision under s 38(4) of the SRC Act. For the reasons set out in [77] and [78] it is not clear whether the decision was a decision to which s 62 of the SRC Act would apply. Accordingly, the Tribunal is not satisfied that it has jurisdiction to review the decision which is the subject of this application.
If the Tribunal is wrong on the issue of jurisdiction (and has in turn been misguided in adopting the approach of Deputy President Boyle in the Lock decision), and it does have jurisdiction to review the decision, then the consideration is whether the decision under review should be:
(a)affirmed;
(b)varied; or
(c)set aside and either:
(i)a substitute decision made; or
(ii)the matter be remitted to the decision maker for reconsideration,
in accordance with subsection 43(1) of the AAT Act.
Given the wording of the decision under review, i.e., that the APC had, as at 15 January 2015, no present liability to pay compensation under sections 16 and 19 of the SRC Act, to set aside and remit the matter in the terms sought by Mr Hickey (or in the terms sought by the APC in the alternative) would, in the Tribunal’s view, fall outside the realm of potential substitute decisions available to it. Adopting the approach taken in paragraph 82 of the Lock decision, the logical converse substitute decision in Application 2015/3782 would be to the effect that Mr Hickey did, as at 15 January 2015, have entitlements to compensation under sections 16 and 19 of the SRC Act. As in the Lock decision, this converse substitute decision, in the face of Mr Hickey not having claimed any such entitlement at the time of the making of the decision or indeed, subsequently, (or, in the Tribunal’s view, not having been in receipt of any compensation under sections 16 or 19 of the SRC Act at the time the determination was made) is in the words of Deputy President Boyle, “obvious nonsense” and would be meaningless.
The Tribunal takes the same view regarding other substitute decisions that would reflect answers to the questions posed by the issue for determination identified by the parties in, for example, paragraphs 71 to 74 above.
As noted by Deputy President Boyle in paragraph 85 of the Lock decision in relation to Ms Lock and applied to the present application, if at some future time Mr Hickey believes that he is entitled to compensation under sections 16 or 19 of the SRC Act, then, obviously, the first thing that he would need to do is make a claim, and that claim, or those claims, will be assessed on the basis of his condition and the evidence at that time.
As no relevant claim for compensation under sections 16 or 19 of the SRC Act appears to have been made (nor has Mr Hickey contended as such), then by the operation of subsection 54(1) of the SRC Act, “[c]ompensation is not payable to a person under this Act…” and there can be no liability for payments of compensation to Mr Hickey under the SRC Act. As such, the decision under review set out at paragraphs 4 and 77 above is correct, albeit (as in Ms Lock’s case) a “gratuitous, but accurate statement of the legal position.”
For the above reasons, the Tribunal is of the view that the decision under review, being the APC decision dated 30 June 2015 is, as a statement of the legal position as at 15 January 2015, correct and, if the Tribunal did consider that it did have jurisdiction, it would affirm the decision.
EVIDENCE
The two applications were dealt with together at the hearing in Perth on 20, 21 and 22 June 2017 and on 12, 13 and 14 December 2017. Mr Hickey appeared in person and was represented by Counsel, Mr Robert McCabe. Mr McCabe was instructed by Mr Damien Hill from W G McNally Jones Staff Lawyers. The APC was represented by Counsel, Mr Peter Woulfe. Mr Woulfe was instructed by Ms Amanda Danti from Moray & Agnew Lawyers.
The following witnesses gave oral evidence and were cross-examined at the hearing:
(a)Mr Hickey;
(b)Mr Barrie Slinger, Orthopaedic Surgeon;
(c)Mr Bryan Watkins, union representative;
(d)Dr Desmond Williams, Orthopaedic Surgeon;
(e)Dr Haroon Riaz, Psychiatrist;
(f)Ms Pratiksha Shah, APC employee;
(g)Mr Glen Resuggan, APC employee;
(h)Mr Colin Bailey, APC employee;
(i)Mr Fredrick J Phillips, Orthopaedic Surgeon;
(j)Mr Michael Alexeeff, Orthopaedic Surgeon;
(k)Ms Donna Vecchio, APC employee;
(l)Ms Jennifer Porter, APC employee; and
(m)Ms Debra Thornborough-Owen (nee Ms Debra Payne), APC employee.
Evidence before the Tribunal
The Tribunal received the following evidence:
·Mr Hickey’s witness statement dated 16 October 2016, including bundle of documents (marked A – O,) and referred to within his statement (A1);
·medical report of Dr Essa Rasool (General Practitioner) dated 18 January 2017, with briefing letter from W G McNally Jones Staff dated 4 January 2017 (A2);
·curriculum vitae of Mr Barrie Slinger (Orthopaedic Surgeon), undated (A3);
·medical report of Mr Barrie Slinger dated 31 October 2016 (A4);
·supplementary medical report of Mr Barrie Slinger dated 7 June 2017, with briefing letter from W G McNally Jones Staff dated 29 May 2017 (A5);
·witness statement of Mr Bryan Watkins dated 6 June 2017, with attachments (A6);
·curriculum vitae of Dr Desmond Williams (Orthopaedic Surgeon), undated (A7);
·medical report of Dr Desmond Williams dated 3 January 2017, with briefing letters (2) from W G McNally Jones Staff dated 8 September 2016 and 17 November 2016 (A8);
·supplementary report of Dr Desmond Williams dated 7 June 2017, with briefing letter from W G McNally Jones Staff dated 29 May 2017 (A9);
·supplementary medical report of Dr Desmond Williams dated 18 June 2017 (A10);
·intervertebral disc diagrams, side and cross view, extracted from Grants Atlas of Anatomy, undated (A11);
·medical report of Dr Haroon Riaz (Psychiatrist) dated 24 February 2017, with briefing letter from W G McNally Jones Staff dated 1 December 2016 (A12);
·witness statement of Mr Craig Power dated 16 December 2016 (A13);
·medical report of Dr Frederick Ng (Consultant Psychiatrist) dated 20 September 2016, with briefing letter from W G McNally Jones Staff dated 8 September 2016 (A14);
·supplementary medical report of Dr Frederick Ng dated 5 June 2017, with briefing letters (2) from W G McNally Jones Staff dated 25 May 2017 and 30 May 2017 (A15);
·supplementary report of Dr Haroon Riaz dated 13 June 2017, with briefing letters dated 25 May 2017 and 30 May 2017 (A16);
·letter from Mr Michael Alexeeff (Orthopaedic Surgeon) dated 30 May 2017, with enclosure (A17);
·T-Documents, consisting of:
oa 101 page set of T-Documents (T1 – T40) in Application 2015/0729 (R1);
oa 269 page set of T-Documents (T1 – T110) in Application 2015/3786 (R2); and
oa 520 page set of supplementary T-Documents (ST1 – ST23, 2 volumes) in Application 2015/0729 and Application 2015/3786 (R3);
·Patient Health Summary from the Ridge Baldivis Medical Centre, including surgery consultation records by Dr Essa Rasool, various dates (R4);
·medical report of Dr Haroon Riaz dated 4 May 2011 (R5);
·medical report of Mr Fredrick Phillips (Orthopaedic Surgeon) dated 28 October 2016, with briefing letter from Moray & Agnew Lawyers dated 14 October 2016 (R6);
·supplementary medical report of Mr Fredrick Phillips dated 16 May 2017, with briefing letter from Moray & Agnew Lawyers dated 12 May 2017 (R7);
·curriculum vitae of Mr Fredrick Phillips, undated (R8);
·medical report of Dr Lawrence Terace (Consultant Forensic Psychiatrist) dated 26 October 2016, with briefing letter from Moray & Agnew Lawyers dated 10 October 2016 (R9);
·supplementary report of Dr Lawrence Terace dated 17 May 2017, with briefing letter from Moray & Agnew Lawyers dated 12 May 2017 (R10);
·supplementary report of Dr Peter McCarthy (Psychiatrist) dated 23 May 2017, with briefing letter from Moray & Agnew Lawyers dated 12 May 2017 (R11);
·index of documents provided to Mr Fredrick Phillips, numbered 1(a) – 1(m), 2 to 7 (R12);
·index of documents provided to Mr Michael Alexeeff, numbered 1, 2(a) – 2(m), 3 to 12 (R13);
·witness statement of Ms Donna Vecchio dated 23 May 2017, with annexures (R14);
·witness statement of Ms Jennifer Porter dated 23 May 2017, with annexures (R15);
·witness statement of Ms Joanne Roberts dated 22 May 2017 (R16);
·witness statement of Ms Debra Thornborough-Owen dated 19 May 2017, with annexures (R17);
·witness statement of Ms Pratiksha Shah dated 24 May 2017, with annexures (R18);
·witness statement of Mr Glen Resuggan dated 22 May 2017, with annexures (R19); and
·witness statement of Mr Colin Bailey dated 23 May 2017 (R20).
The following additional material was put before the Tribunal prior to and following the hearing in accordance with the Tribunal’s directions:
·Mr Hickey’s Statement of Facts, Issues and Contentions (“Mr Hickey’s SFICs”) dated 25 January 2017;
·APC’s Statement of Facts, Issues and Contentions (“APC’s SFICs”) dated 27 March 2017;
·Mr Hickey’s written closing submissions dated 1 February 2018 and list of authorities;
·the APC’s written closing submissions dated 2 March 2018;
·Mr Hickey’s responsive written submissions dated 16 March 2018;
·the APC’s written closing submissions regarding Comcare v Drinkwater [2018] FCAFC 62 dated 15 June 2018;
·Mr Hickey’s written submissions in response to the APC’s submissions following Comcare v Drinkwater [2018] FCAFC 62 dated 25 June 2018; and
·the parties’ Statement of Agreed Facts submitted at hearing (set out in paragraph 363 below).
Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Relevant aspects of the evidence are referred to below. In this regard, the Tribunal notes that a proportion of the documentary and oral evidence in this matter relates to Application 2015/3786. The Tribunal has outlined above at paragraphs 71 to 86 the reasons why it considers it does not have jurisdiction to review the decision which is the subject of Application 2015/3786. However, the Tribunal sets out and refers to the facts and evidence as they relate to Application 2015/3786 to the extent necessary to preserve the chronology and completeness of the factual picture in matters relating to Application 2015/0729.
Oral evidence at hearing
Mr Hickey
At hearing, Mr Hickey gave oral evidence to the Tribunal in person, including during cross-examination by Mr Woulfe. Mr Hickey had earlier provided a statement dated 16 October 2016, which includes a bundle of documents (marked A – O) referred to within the statement (A1).
Mr McCabe directed Mr Hickey to paragraph 105 of Mr Hickey’s statement (A1), which reads:
By mid 2013 [sic] I had become increasingly depressed, there was still nothing to do at work at all. I would arrive at work and wonder what I was doing there. I could not understand how things had come to this. I felt as if Australia Post saw no value in me whatsoever and was just happy to see me rot away. I felt completely alienated and abandoned by my employer.
Mr McCabe asked Mr Hickey to explain to the Tribunal how he was feeling at this time in mid-2013. Mr Hickey responded that by that stage (that is, in mid-2013) he was just feeling completely worthless.
Mr Hickey said that initially, about a year prior, when the lights started just going off, as if he wasn’t there, it was quite comical. Mr Hickey said that he had, at that time, brought it to the attention of the manager at the distribution centre. Mr Hickey said that by 2013, it wasn’t funny anymore and it was just completely demoralising. Mr Hickey said that this was because every time that those lights would go out it would remind him of how much he just didn’t matter.
Mr Hickey said that (then) “when the posties are gone” the lights would go out and it was soul destroying, demoralising and went on for so long. Mr Hickey said that he could not have been made to feel more insignificant, as if everything he had done in the past, which included his having committed himself to the rehabilitation process to the best of his ability and all of his own time that he had put in to get himself “from a computer illiterate truck driver into someone who could bring value” didn’t matter anymore.
When asked by Mr McCabe as to why he felt that “he just didn’t matter” (refer to paragraphs 96 and 97 above), Mr Hickey said that he felt that he didn’t matter to anyone because no matter what he pointed out or how he tried to present it, no-one cared. Mr Hickey said that he was out of sight and out of mind, he was “just that bloke on comp down in Rockingham.”
Mr Hickey said that it was around that time (in mid-2013) he began to have doubts about himself and his capabilities. Mr Hickey said that he was turning up in the car park every day and wondering what he was doing there. Mr Hickey said that he would then go inside and there was “just nothing”, that there was no job to do, no work task, no emails coming in, no phone ringing. Mr Hickey said that he would sit in the dark (at work) reflecting on his situation and wondering why it had come to this.
Mr Hickey said that at one stage they (the APC) had set up a data entry process whereby he could cross check customer details and make any necessary corrections. Mr Hickey said that he had been quite prepared to participate in that process but he had had difficulty in “logging in” to find out what the job was about.
Mr Hickey said that he had also experienced difficulties in participating in the weekly telephone conference with the relevant APC team in Melbourne (where the work was based) beyond the first conference because there was no suitable work environment or office available to enable him to properly participate. Mr Hickey said that he had tried to explain these difficulties to “the lady who was in charge of it,” who had said “I’ll speak with Cathy (Dillon),” however he did not hear further from either person.
Mr Hickey said that the next thing he read about was that, apparently, according to Donna Vecchio, he had felt that the (data entry) work was below him and that he wanted his own office because of the teleconferencing and that he was being unrealistic. Mr Hickey said that this wasn’t the case. Mr Hickey said that there was a good and valid reason that he had put forward as to why he couldn’t participate (in the teleconferencing), and it wasn’t a lack of him wanting to participate. Mr Hickey said it was quite simply a lack of the APC wanting to facilitate his participating.
During cross-examination by Mr Woulfe, it was put to Mr Hickey that his evidence elaborating on paragraph 105 of his statement in relation to his becoming increasingly depressed in mid-2013 weren’t mentioned in his claim for compensation form (R1,T3, page 10) or in his incident form (R1, T4, page 15), the latter of which says:
3.1 Summarise in a few words what happened:
Exclusion, indifference and lack of acknowledgement and reward.
Mr Woulfe then asked Mr Hickey to answer as to whether the matters elaborated on in his evidence-in-chief did or did not appear on the compensation claim form or the incident form.
In response to the matters put to him at paragraph 103 above, Mr Hickey said that those additional matters did not appear on the forms. Mr Hickey gave the reason that at that particular point in time, there were just too many (matters) to contemplate and that he was having a great deal of difficulty in expressing himself. Mr Hickey said that the claim form did not ask him to provide the examples that he had given in his evidence (in-chief) and that rather, the claim form asks him to make a summary in a few words, which was exactly what he did.
As to why Mr Hickey did not state on the forms that the lights were turning out or that he was, at times, sitting in the dark, Mr Hickey said that he had already explained that to Colin Bailey, but that it didn’t seem to matter.
Mr Woulfe then suggested to Mr Hickey that the “big list of examples” that he provided in his examination-in-chief also do not appear in the detailed description he provided in an email to Ms Wells and Mr Resuggan on 14 February 2014 (R1, T8, pages 30 to 32).
Mr Hickey confirmed that in that document (the email referred to in paragraph 106 above), he provides a range of comments about the meeting he had with Jim Rolt in 2006 or thereabouts, mentioning that that meeting could well have been the “initiator” or “catalyst” of his “current situation.” Mr Hickey agreed that he said in that email that the meeting had been agreed to by Mr Rolt in response to persistent requests presented by him (Mr Hickey) over a number of years to have the role that he was undertaking on behalf of the APC assessed for “proper reward and recognition.”
Mr Woulfe then took Mr Hickey to the following paragraph of the email dated 14 February 2014 (R1, T8, page 30):
…I cannot define a specific point in time when I first became affected by depression, only that its development was most probably initiated after a meeting I attended sometime in 2006 held between myself, then manager of WA Transport Division, Jim Rolt, and then newly appointed admin manager of WA Transport, Chris Morgan…
When asked whether the context of that extract (at paragraph 108 above) was the principal concern that Mr Hickey had when he filled in his claim for compensation form, Mr Hickey initially answered “no” and gave an alternative explanation. After some discussion regarding the context of the question and additional comments from Mr Hickey, the Tribunal queried with Mr Hickey as to whether his answer to the question was actually “yes” and Mr Hickey said “okay.”
Mr Woulfe went on to note a number of other matters set out in the email dated 14 February 2014 before focusing on the paragraph of the email that states (R1, T8, page 31):
…I had left that meeting feeling of little value to POST, and despite years of hard work and commitment to my job trying to prove my worth, Jim Rolt had just made it very clear that he was going to use the workers [sic] compensation act to discriminate against me and avoid his obligation as facility manager, to recognise and reward appropriately. I left that meeting with all my hope for my future career [sic] and feeling like a victim…
When asked, Mr Hickey said that it was in that context (of the extract at paragraph 110 above) that he started to feel of little value.
Mr Woulfe continued to note additional matters in the email dated 14 February 2014 that followed those raised in the extract at paragraph 110 above. When asked by Mr Woulfe as to whether the email, in the role it serves in elaborating on Mr Hickey’s incident form (R1, T4, page 15) does not refer to:
(a)the data entry lady and the conversation Mr Hickey had with her; or
(b)“having nothing to do”; or
(c)sitting in the dark,
Mr Hickey agreed that the email did not address those matters.
Mr Woulfe suggested to Mr Hickey that, in filling in the incident form (at (R1, T4, page 15), he was indicating the facts and circumstances on which he based his claim for compensation, and that he had elaborated on these facts and circumstances in his email dated 14 February 2014 (R1, T8, pages 30 to 32). Mr Hickey disagreed and said that what he was doing was “pointing out the indifference…[the] indifferent circumstances along the way that had happened where Australia Post had shown quite clearly that they were prepared to treat [Mr Hickey] differently from other people because [Mr Hickey] had an injury” (Transcript of 20 June 2017 at page 36).
Mr Woulfe then put it to Mr Hickey that his disagreement with Mr Woulfe (in paragraph 113 above) was Mr Hickey “just trying to re-characterise what [Mr Hickey had] put in [his] document, because [Mr Hickey] know[s] that Australia Post relies on [Mr Hickey’s] failure to obtain a promotion…” Mr Hickey disagreed and gave evidence to the effect that while nothing else was put in the email of 14 February 2014, “there [are] things that explain other things within the same document that need to be considered” (Transcript of 20 June 2017 at page 36). Mr Hickey said that when he filled in the incident form, he did not know that he had to give an outline of what it was that was making him sick. Mr Hickey said that he starts off in the email dated 14 February 2014 saying that it probably started with the meeting with Jim Rolt, and there was an endless list of things that he could have put there. Mr Hickey said that he did not include all the matters in the “endless list” because there was no requirement for him to do so, referring to the instruction on the incident form to “… [s]ummarise in a few words what happened” (R1, T4, page 15).
The APC, in its written closing submissions, submits the following matters are critical and have emerged from the facts relevant to item 1 of the Agreed Facts (see paragraph 51 of the APC’s closing submissions):
(a)Mr Hickey sought promotion or reclassification in or around early 2007;
(b)the APC subsequently evaluated the level of work performed by Mr Hickey for the purpose of determining the extent to which (if any) he should be promoted or reclassified;
(c)as part of that evaluation, the APC enlisted the aid of an extremely experienced human resources practitioner (Mr Patrick) with over 30 years’ experience;
(d)Mr Patrick took into account a range of relevant data in conducting his assessment. This data included Mr Hickey’s email of 18 October 2007. Mr Hickey’s email comprised a very detailed and comprehensive discussion of the nature, and content, of his duties. Mr Hickey thus had a sufficient opportunity to put forward his case in the context of his request for promotion or reclassification;
(e)taking into account Mr Hickey’s email of 18 October 2007, Mr Patrick concluded that Mr Hickey’s work level was that of an ASO3. But Mr Patrick’s assessment was “on the generous side” – in Mr Hickey’s favour – given some of the tasks were below the ASO3 level. Mr Patrick considered that a formal position ought not to be established for Mr Hickey;
(f)however, the APC promoted Mr Hickey to the ASO3 level. That position was created effectively to “accommodate” him. The “start date” of the promotion was specified as 31 August 2007. That date was just before Mr Hickey’s birthday, which had superannuation benefits for him should be have left the APC within the succeeding three years; and
(g)Mr Hickey’s promotion resulted in his being put into a higher remuneration band. He moved from the $35,826 to $37,602 band to the $46,167 to $53,737 band.
The APC, in paragraphs 52 to 54 (inclusive) of its written closing submissions, submits that, in relation to its conduct regarding the 2007 review, the matters it regards as critical (as identified in paragraph 452 above) establish that the administrative action taken by it was both reasonable and occurred in a reasonable manner. Specifically, the APC contends that (see paragraph 52 of the APC’s closing submissions):
(a)Mr Hickey was treated reasonably, if not generously, in the process of evaluating his role. The APC went to significant efforts to evaluate Mr Hickey’s request for promotion or reclassification, enlisting the aid of an experienced human resources practitioner and giving Mr Hickey an opportunity to provide a detailed explanation of his duties as part of the process. A new role was created to accommodate Mr Hickey, which had financial and other benefits for him, including being put into a higher remuneration band;
(b)it is not established that Mr Hickey must have been promoted or reclassified at a level higher than an ASO3 in 2007. On the contrary, the evidence shows that it was reasonably open to the APC to promote Mr Hickey to the ASO3 level even though the question of whether Mr Hickey performed at a lower, or possibly higher, level than that was a matter on which reasonable minds might have differed. The overall decision was therefore reasonable. Mr Hickey’s evidence does not compel a different conclusion;
(c)it is not established that the manner in which Mr Hickey was promoted or reclassified must have been conducted in another way. On the contrary, it was reasonably open to the APC to proceed in the way that it did. The evidence shows that Mr Hickey’s relevant requests were actioned in less than a calendar year, and he was reasonably involved in the process. There was no obligation on the APC to proceed with more haste in the circumstances, particularly where Mr Hickey’s role was somewhat unique compared with similar roles in other States. There was no obligation on the APC to deal with Mr Hickey in another manner in the circumstances; and
(d)ultimately, Mr Hickey’s principal complaints are that he should have been promoted to a higher level within the APC’s corporate structure. However, injuries suffered as a result of disappointment, the kinds of which Mr Hickey experienced, are excluded from compensation: cf Golds v Comcare [1999] FCA 1481 at paragraph 42 (Cooper J). Accordingly, the claimed psychological condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.
The APC also submits that, in the context of the 2007 review, Mr Hickey puts his case too highly, as follows (see paragraph 53 of the APC’s closing submissions):
(a)in light of the observations of Dixon J (as his Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 (“the Briginshaw decision”) at paragraphs 361 to 362, the available evidence does not permit the Tribunal reasonably to be satisfied on the balance of probabilities that there was a “deliberate” delay in the review of Mr Hickey’s classification or that there were efforts to “stymie” Mr Hickey’s request for a review. Nor does the evidence permit the Tribunal reasonably to be satisfied that Mr Rolt “misused” his position to get Mr Hickey to work for “significantly” less pay than his counterparts performing substantially the same work in other States. For example, it is not established Mr Rolt was sufficiently involved in Mr Patrick’s review of Mr Hickey’s classification in 2007 for such assertions to be either relevant or made out in the circumstances. Contrary to Mr Hickey’s position, Mr Rolt urgently (i.e., within half an hour) facilitated Mr Hickey’s provision of information to Mr Patrick for the purposes of the review of his classification on 9 October 2007. But Mr Hickey responded nine days later. Further, the evidence establishes that Mr Hickey was not performing a full workload and his counter parts in other States had additional responsibilities (R15, paragraph 20):
(i)in response to the APC’s submission at subparagraph 454(a) directly above, Mr Hickey contends further (in paragraphs 3 to 5 of his written closing submissions in response dated 16 March 2018) that:
3. There is no evidence that Mr Rolt’s email in 2007 was sent on an urgent basis, and the fact it was forwarded to the Applicant within half an hour is not sufficient evidence to draw the inference that Mr Rolt acted within a reasonable period to review the Applicant’s position.
4. The evidence supports the inference that Mr Rolt was the Transport Manager he failed to perform any review into the Applicant’s role, given that the review was only commenced when Mike Owen became the Transport Manager.
5. This is significant given that the Applicant was performing those duties for approximately 10 years before any review was contemplated, by a different Transport Manager.
(b)in light of the observations of Dixon J in the Briginshaw decision, the available evidence does not permit the Tribunal reasonably to be satisfied that Ms Thornborough-Owen “perpetrated” efforts to “restrict and delegitimise” Mr Hickey’s complaints and requests. Nor does the evidence permit the Tribunal reasonably to be satisfied that Ms Thornborough-Owen “manipulated” the review of Mr Hickey’s position to ensure that he was “assessed at the lowest possible classification.” For example, it was not specifically suggested to Ms Thornborough-Owen during cross-examination that she engaged in that particular course of serious and calculated conduct. On the contrary, there were suggestions to Ms Thornborough-Owen that she was concerned that Mr Hickey was “manipulating the system”; those concerns were enlarged upon at Mr Hickey’s request. But the inherent probabilities of the circumstances do not support the very emotive conclusion Mr Hickey urges on the Tribunal:
(i)in response to the APC’s submission at subparagraph 454(b) directly above, Mr Hickey contends further (in paragraphs 6 to 10 of his written closing submissions in response dated 16 March 2018) that:
6. Contrary to the Respondent’s submissions, it was put to Ms Thornborough-Owen in cross-examination that her conduct as described in paragraph [119] of the Applicant’s submission was in direct response to the Applicant’s request for his employment classification to be reviewed…
7. Further, the suggestion that Ms Thornborough-Owen’s concerns about the Applicant were “enlarged” because of the Applicant’s request for a review into his position should be rejected for two reasons:
7.1 Firstly, the transcript references referred to by the Respondent do not suggest, explicitly or implicitly, that Ms Thornborough-Owen drew any connection between her concerns about the Applicant and his request for his position to be reviewed; and
7.2 Secondly, it was put to Ms Thornborough-Owen that it was “no mere coincidence” that she was going to discuss her concerns about the Applicant at the same time as his request for his position to be reviewed and her evidence was that she would “definitely disagree”…
8. There was no re-examination of Ms Thornborough-Owen.
9. The Respondent’s contention that the inference be drawn that Ms Thornborough-Owen’s concerns were legitimate and merely “enlarged” on the Applicant’s request for his position to be reviewed should be rejected.
10. Instead, it is submitted that the correct and preferable decision is that Ms Thornborough-Owen was searching for a way to influence the Applicant’s request for his position to be reviewed by raising questions about the Applicant’s conduct.
(c)contrary to Mr Hickey’s submissions, it is not established that there was a need for Mr Patrick to speak with Mr Hickey to verify or clarify his role, duties or hours. As advised by Ms Porter around 29 November 2012, that course would have been both unnecessary and unusual (R15, Annexure H). As advised by Ms Thornborough-Owen, it was not necessary to meet with the employee further during the assessment process particularly where that employee has provided relevant information regarding their duties by email (R17, paragraph 22 and oral evidence at hearing). It also was not necessary to conduct a detailed review of each of the files that an employee had worked on (R17, paragraph 22). In any event, Mr Hickey had already sent to Mr Patrick a very detailed and comprehensive discussion of the nature, and content, of, his duties on 18 October 2007. Accordingly, to the extent that there were any deficiencies in Mr Patrick’s understanding of Mr Hickey’s role in the circumstances (which is denied), Mr Hickey was the author of his own misfortune. It is not established that any of Mr Hickey’s perceived errors in Mr Patrick’s assessment materially affected the result or that a different conclusion must have been reached if another assessment were undertaken;
(d)contrary to Mr Hickey’s submissions, Ms Thornborough-Owen did not tell Mr Hickey that his job would be outsourced if he did not accept reclassification to the ASO3 level. Ms Thornborough-Owen denied making any such suggestion to Mr Hickey as it was not something she would say (R17, paragraph 25). The inherent probabilities of the circumstances do not support the conclusions Mr Hickey urges on the Tribunal. In that respect, Mr Hickey was at the time suffering from the previously accepted low back injury. As conceded by Mr Watkins under cross-examination, the APC had accommodated Mr Hickey previously by providing work for him at the Rockingham Distribution Centre. Given the APC’s obligations reasonably to provide suitable employment to Mr Hickey in the context of his previously accepted low back injury, it is not established that the APC would have outsourced Mr Hickey’s role as some kind of retaliatory measure based on his refusal to accept the ASO3 classification. On the contrary, at the time that Mr Hickey raised his concerns in 2007, the motor accident function had been outsourced in other States (R17, Annexure B). It was therefore reasonable to consider whether the same should have occurred with regard to the (non-equivalent) Western Australian role; and
(e)as outlined in subparagraphs 453(b) and 453(c) above, it is not established that the APC must have proceeded with more haste or in a different manner in the circumstances. In simple terms, Mr Hickey’s complaints focus on what might have occurred differently. But those complaints do not establish that the APC was obliged to behave any differently in the circumstances. Mr Hickey’s submissions fall into the error of calling on the Tribunal to engage in the exercise of determining whether the APC could have behaved more reasonably in the circumstances. But that is not the judgment that is required. The only question posed by the SRC Act is whether the APC’s relevant actions were reasonable and taken in a reasonable manner. In all of the circumstances, they were.
The APC submits that ultimately, the reclassification of Mr Hickey to an ASO3 in 2007 was a reasonable administrative action that was taken in a reasonable manner in respect of his employment. The APC submits that it follows that Mr Hickey has not suffered an “injury” for the purposes of section 5A of the SRC Act and accordingly, Mr Hickey’s claim must fail (see paragraph 54 of the APC’s closing submissions).
The parties have agreed that Mr Hickey’s depression condition is a “disease” within the meaning of section 5B of the SRC Act and it was suffered “as a result of” the administrative action of what the Tribunal has characterised as the actions relating to the 2007 review. For reasons given at paragraphs 367 to 388 above, the Tribunal is not satisfied on the evidence before it that Mr Hickey’s depression condition is a “disease” as defined. However, as the parties have reached an agreement to the contrary, the Tribunal has gone on to consider whether the evidence indicates that Mr Hickey’s depression condition was suffered “as a result of” the particular administrative action constituting the 2007 review. For the reasons set out in paragraph 457 below, the Tribunal considers that the available evidence supports this finding.
The Tribunal has considered the parties’ submissions regarding the 2007 review against the background of the relevant findings of fact (at paragraphs 389 to 447 above), the relevant legal principles and the available documentary and oral evidence. In this regard, the Tribunal makes the following comments and findings:
(a)Mr Hickey had the expectation that the process adopted by the APC in conducting the 2007 review would include someone approaching him to verify the contents of his email of 18 October 2007, and look at his files and ask him to explain the complexities of his role (refer to paragraph 151 above). Mr Hickey considered that this was necessary in order to obtain a clear and fair representation of the work that he performed (refer to paragraph 172 above);
(b)Mr Hickey said that if he had known at the time that his email of 18 October 2007 would be his only opportunity to cast himself in the best possible light in terms of his role, he probably would have taken a great deal more time in putting it together (refer to paragraph 152 above);
(c)Mr Hickey did however, acknowledge that he was aware of the importance of his email of 18 October 2007 at the time and that there was no APC policy in existence that would entitle him to a “second bite of the cherry” in terms of putting his best foot forward (refer to paragraph 153 above);
(d)Mr Hickey thought the AO3 classification was unfair because it meant that he was “still being paid as a truck driver” although he was not performing any driving (refer to paragraph 154 above);
(e)Ms Vecchio believed that many of the principal accountabilities of the Victorian job description (AO5 level) were not quite comparable with the accountabilities of the Administration Support role (AO3 level). Ms Vecchio did not think it untoward that Mr Patrick did not refer to the Victorian job description in his assessment of Mr Hickey’s role in 2007 because Mr Patrick had focused on Mr Hickey’s duties, not the higher duties of the Victorian job description (refer to paragraph 229 above). Ms Vecchio believed the inclusion of fleet collision tasks in Mr Hickey’s role or the cessation of the knock for knock agreement did not alter her conclusion in this regard (refer to, for example, paragraph 231 above);
(f)Ms Thornborough-Owen had intended to visit Mr Hickey on 9 May 2007, although this was not the specific purpose of her routine visit to the Rockingham Delivery Centre on that date (refer to paragraph 283 above). Ms Thornborough-Owen did not consider this to have been a long period for Mr Hickey to wait from when he initially raised his concerns in January 2007 or that she was even going to specifically discuss his concerns regarding his role, duties and related classification on this date (refer to paragraph 286 above). Ms Thornborough Owen said she had other matters to raise with Mr Hickey on that date, relating to his time and attendance rostering (refer to paragraphs 302 to 304 above);
(g)Ms Thornborough-Owen’s conclusion that Mr Hickey’s work load was less than full-time was reached without fully exploring this with Mr Hickey at the time, however she did not consider this necessary due to other feedback she had accessed on this point (refer to paragraph 292 above);
(h)Ms Thornborough-Owen was of the view that Mr Hickey was “manipulating the system” and that she was “tightening up on him,” although this was partially in reference to his periodical time off work and retrospective medical certificates along with matters relating to Mr Hickey’s role (refer to paragraph 301 above). Ms Thornborough-Owen was “keen to progress” how the APC could “utilise” the information that Mr Hickey attended his GP following Ms Thornborough-Owen’s visit (refer to paragraph 309 above);
(i)Ms Thornborough-Owen was also of the view that the Victorian job description had not formed a part of Mr Patrick’s review of Mr Hickey’s role because it had already been determined not to be relevant (refer to paragraph 315 above), which in Mr Hickey’s view was premature;
(j)Clearly, Mr Hickey was deeply disappointed with:
(i)the manner in which the 2007 review was conducted;
(ii)the manner in which peripheral matters relating to the 2007 review were handled, for example, his frustration with delays in his being contacted by APC personnel for input and information and his views that the APC’s understanding of his role was insufficient; and
(iii)the review outcome.
Mr Hickey’s disappointments and frustrations are well documented and detailed by Mr Hickey personally and in communications conveyed by his union representatives.
(k)In Mr Hickey’s view, these delays were deliberate and unreasonable. In the APC’s view, Mr Hickey has not directed the Tribunal to any evidence of either being the case, or that the APC was required to do anything more or anything differently in conducting the review in the manner in which it did;
(l)Given it was known to all concerned the degree of importance these matters had to Mr Hickey (indeed, Ms Vecchio said that every time she met with Mr Hickey, the first thing that was discussed was his job level, refer to paragraph 253 above), the Tribunal considers that it would have been no great task for the APC to have been more communicative and consultative with Mr Hickey throughout the review process in order to ease his frustrations. The Tribunal has some empathy for Mr Hickey in this regard;
(m)However, the Tribunal’s view that the APC’s conduct in performing the 2007 review was somewhat less than exemplary brings it no closer to finding that the RAA exclusion does not apply. Overall, and objectively speaking (as it is required to do so), the APC undertook an evaluative process of Mr Hickey’s role, duties and classification, seeking input from Human Resources and from Mr Hickey. As such, the action of the 2007 review, is in the Tribunal’s view, reasonable administrative action;
(n)While Mr Hickey was unhappy with how this process was conducted, there is no evidence before the Tribunal that the APC was obliged to conduct this review in a different way, with additional or more detailed input from Mr Hickey or in a more expedient time frame. A role was then formally created for Mr Hickey, which he accepted;
(o)Also, and clearly, certain staff members had their own views regarding Mr Hickey more generally (for example Ms Thornborough-Owen’s view regarding Mr Hickey “manipulating the system”). The Tribunal does not find the 2007 review, either in the way that it was conducted or in its outcome, was in any way clouded or influenced in any material sense by these views;
(p)Applying the Lim decision, it does not matter that the 2007 review could have been done more reasonably. The Tribunal reiterates its view that the APC certainly could have done so, and done so easily. However, there is not, in the Tribunal’s view, any aspect of the manner in which the 2007 review was conducted that brings it into the realm of being untoward, irrational, absurd or ridiculous (applying the Re Lynch decision) or that otherwise renders it something other than reasonable. Indeed, the 2007 review is an administrative action in which there may have been more than one way of doing so reasonably. The Tribunal finds that the manner in which it was conducted by the APC was one way of doing so; and
(q)Accordingly, the Tribunal finds that the 2007 review was a reasonable administrative action that was taken in a reasonable manner in respect of Mr Hickey’s employment. The Tribunal therefore finds that the RAA exclusion applies to Mr Hickey and he has not suffered an “injury” for the purposes of section 5A of the SRC Act.
Having reached this view, it is unnecessary to consider the remaining matters set out at paragraph 69 above, namely, whether:
(a)the remaining actions identified by the parties as the relevant administrative actions (refer to the Agreed Facts numbered 2 to 4 set out at paragraph 363 above) were also “in respect of” Mr Hickey’s employment or, whether those administrative actions were reasonable and/or undertaken in a reasonable manner; and
(b)the action identified by the parties in Agreed Fact number 5, being the outsourcing of Mr Hickey’s position, amounts to administrative action for the purpose of subsection 5A(1) of the SRC Act and if so, whether that administrative action was “in respect of” Mr Hickey’s employment, and if so whether that administrative action was reasonable and/or undertaken in a reasonable manner.
For completeness, the Tribunal notes it is of view that, on the evidence before it, there are no other actions by the APC that can properly be identified as “administrative actions” that, had its finding regarding Agreed Fact number 1 been different, ought to fall for consideration in the present context.
CONCLUSION
In relation to Application 2015/3687, the Tribunal finds that in the absence of an identifiable claim, it does not have jurisdiction to review the APC’s decision dated 30 June 2015, which affirmed a determination dated 15 January 2015 that the APC had no present liability to pay compensation under sections 16 and 19 of the SRC Act in relation to Mr Hickey’s “L5-S1 disc prolapse on the left with a sequale of soft tissue injury right foot” condition.
In relation to Application 2015/0729, Mr Hickey seeks an acceptance of liability under section 14 of the SRC Act in relation to his depression condition. In this regard, the Tribunal finds that:
(a)Mr Hickey suffered from depression, an ailment as defined in subsection 4(1) of the SRC Act, at the relevant time;
(b)there was, in the Tribunal’s view, insufficient evidence to conclude that Mr Hickey’s employment with the APC contributed to his depression condition, to a significant degree. Therefore, the Tribunal finds that Mr Hickey’s claimed depression condition is not a “disease” within the meaning of section 5B of the SRC Act (and hence an injury as defined in subsection 5A(1)(a) of the SRC Act). This conclusion stands contrary to the parties’ positions in this regard, who at hearing agreed that Mr Hickey’s depression is a “disease” as defined;
(c)given the position taken by the parties regarding causation, the Tribunal proceeded to consider whether the RAA exclusion applied to Mr Hickey;
(d)on the evidence before it, the 2007 review was RAA that was taken in a reasonable manner in respect of Mr Hickey’s employment; and
(e)the RAA exclusion applies to Mr Hickey; and therefore,
(f)in relation to Mr Hickey’s claimed depression condition, he has not suffered an “injury” for the purposes of section 5A of the SRC Act; and in turn,
(g)Mr Hickey’s claim under section 14 of the SRC Act must fail.
DECISION
For the reasons outlined above:
(a)Application 2015/0729 – The Tribunal affirms the decision under review.
(b)Application 2015/3786 – The Tribunal finds that it does not have jurisdiction to review the decision.
I certify that the preceding 462 (four hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
....[sgd]................................................................
Associate
Dated: 18 October 2018
Date(s) of hearing: 20, 21 and 22 June and 12, 13 and 14 December 2017 Counsel for the Applicant: Mr Robert McCabe Solicitors for the Applicant: W G McNally Jones Staff Lawyers Counsel for the Respondent: Mr Peter Woulfe Solicitors for the Respondent: Moray & Agnew Lawyers
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