Jocelyn Labuguen and Comcare

Case [2014] AATA 455

[2014] AATA  455

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/3883

Re

Jocelyn Labuguen

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Senior Member A K Britton
Date 7 July 2014
Place Sydney

The decision under review is affirmed.

............................[SGD]............................................

Senior Member A K Britton

CATCHWORDS

WORKERS’ COMPENSATION — Claim for adjustment disorder with anxiety and depression——Whether injury was a result of reasonable administrative action —  — Whether administrative action was taken in a reasonable manner

LEGISLATION

Administrative Appeals Tribunal Act (Cth) 1975 – s2A

Financial Management and Accountability Regulations 1997 (Cth) – reg 13

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A(1); 14;

Workers Rehabilitation and Compensation Act 1986 (SA)

CASES

Comcare v Martinez (No 2) [2013] FCA 439

Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181

Drenth v Comcare (2012) 128 ALD 1

Hart v Comcare (2005) 145 FCR 29

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

National Australia Bank Limited v KRDV [2012] FCA 543

REASONS FOR DECISION

Senior Member A K Britton

7 July 2014

  1. Ms Jocelyn Labuguen worked as a finance officer in the Fleet Information System Support Office of the Department of Defence (FISSO) for seven years to March 2009. FISSO provides financial and technical support services to the Royal Australian Navy. In 2007 Ms Labuguen applied for the newly created position of FISSO finance manager. Despite having successfully acted in that position for a number of years and enjoying the support of her managers, Ms Labuguen’s application for promotion was unsuccessful.

  2. In February 2008 Ms Labuguen discovered what she believed to be financial irregularities within FISSO and brought them to the attention of the newly appointed finance manager, Ms Angela Leary-Smith, among others. Ms Labuguen believed her concerns were ignored.

  3. In April 2008 a written caution was issued to Ms Labuguen for, among other things, sending emails considered to be highly critical of Ms Leary-Smith. In early 2009 she was found to have breached the Australian Public Service Code of Conduct and transferred out of FISSO. Two years later, Ms Labuguen was dismissed from the APS. Fair Work Australia found that the decision to terminate Ms Labuguen’s employment was harsh, unjust and unreasonable and ordered that she be paid six months’ salary in lieu of compensation.

  4. These reasons concern Ms Labuguen’s application for review by the Administrative Appeals Tribunal of the decision made by Comcare to refuse to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an “adjustment disorder with anxiety and depression”. Comcare accepted that Ms Labuguen was suffering from an adjustment disorder that was contributed to, to a significant degree, by her employment. Comcare decided however that Ms Labuguen’s condition was “a result of reasonable administrative action taken in a reasonable manner” and, by the operation of s 5A(1) of the Act, it was not liable for that condition.

  5. In these proceedings Comcare contends that Ms Labuguen’s condition was “a result of”, among other…

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AGLC
Jocelyn Labuguen and Comcare [2014] AATA 455
Case
[2014] AATA 455
Decision Date

CaseChat Overview and Summary

Jocelyn Labuguen, an Australian Public Service employee, filed a claim for workers' compensation, alleging that she suffered from adjustment disorder with anxiety and depression as a result of being denied a promotion. The dispute was heard by the Administrative Appeals Tribunal (AAT). The primary legal issue before the tribunal was whether the decision not to promote Ms Labuguen was reasonable administrative action and whether it was carried out in a reasonable manner. Another point of contention was whether late submissions should be taken into account by the tribunal.

The tribunal found that the promotion decision was one of the causes of Ms Labuguen’s condition, giving preference to Dr Skinner’s opinion. The tribunal was not convinced by Ms Labuguen’s claim that she had quickly moved on from the failed promotion, as her behaviour at the time indicated otherwise. The tribunal concluded that the promotion decision was reasonable administrative action and was carried out in a reasonable manner. As for the late submissions, the tribunal ruled that they should not be taken into account as they did not form part of the evidence or argument during the hearing.

In summary, the tribunal upheld the decision not to promote Ms Labuguen as reasonable administrative action and dismissed her claim for workers' compensation. The tribunal also ruled that late submissions should not be considered in the case.

Orders

Orders of the court

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Background

Background to the litigation

Reasonable administrative action is taken to include “anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment” (s 5A(2)(f)).BACKGROUND Ms Labuguen commenced in the Australian Public Service in 1988. As noted in 2007 she was unsuccessful in her application for appointment to the position of FISSO finance manager. Her application had been supported by her immediate supervisors, Lieutenant Commander (LCDR) Jeff Milward, the Deputy Director of FISSO (January 2005 to December 2007), and Commander (CMDR) Murray Smith, the Director of FISSO (December 2004 – March 2009). In a reference provided in support of Ms Labuguen’s application, LCDR Milward described her as a “diligent and tireless worker well able to fulfil … the role [of FISSO Finance Manager]”. He explained that she had been undertaking the role of both finance manager and finance officer for a number of years “without assistance” during a period of significant growth in FISSO’s budget and staff numbers, which coincided with a period of “considerable increase in financial complexity”. In a letter supporting her application for promotion, CMDR Smith was also highly complementary of Ms Labuguen’s work within FISSO. After being notified that her application for promotion had been unsuccessful Ms Labuguen became extremely upset and sent a number of emails to members of the selection committee and others, using charged and emotional language. Among other things, she stated that when she applied she had misgivings that two members of the selection committee would give her a “fair go”, that she been discriminated against and felt that she had been “dumped”. LCDR Milward directed Ms Labuguen to cease corresponding with the committee, which she did after he met with her on 29 October 2007. According to LCDR Milward the conduct, while regrettable, was “out of character”. He stated that Ms Labuguen had expressed remorse and explained that at the time she was under considerable pressure both at home and at work. Ms Leary-Smith commenced in the role of finance manager of FISSO in December 2007. According to Ms Labuguen she cooperated and assisted in the handover to Ms Leary-Smith. Ms Leary-Smith disputed that claim. On her return from annual leave in late January 2008, Ms Labuguen resumed her position as finance officer, under Ms Leary-Smith’s supervision. Problems soon arose. Ms Labuguen quickly formed the view that Ms Leary-Smith lacked the necessary skills and experience and was struggling in her role. She testified that her relationship with Ms Leary-Smith was not a good one. On 14 February 2008, Ms Labuguen identified what she considered to be a major financial irregularity within FISSO — an unauthorised expenditure of $1.8M. According to Ms Labuguen despite raising the matter on that day and “every day over the next couple of months”, Ms Leary-Smith ignored her concerns. Shortly after making that discovery, Ms Labuguen commenced emailing her supervisors and colleagues about her concerns. She believed that her concerns fell on “deaf ears” and she was being “locked out” of FISSO.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having carefully considered all the medical evidence I prefer the opinion held by Dr Skinner that the promotion decision was one of the causes of Ms Labuguen’s condition. That opinion is reasoned and plausible and not inconsistent with the available evidence. I am satisfied on the balance of probabilities that the promotion decision was an operative cause of Ms Labuguen’s condition. WAS THE DECISION NOT TO PROMOTE MS LABUGUEN “REASONABLE” ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER? Comcare contends that there is no evidence to suggest that the decision not to appoint Ms Labuguen to the position of finance manager was not reasonable or was not taken in a reasonable manner. It is not entirely clear from the written submissions prepared on behalf of Ms Labuguen and filed on 31 March 2014 (the submissions) whether she now contends that that decision was not “reasonable”. Part of submissions suggest that Ms Labuguen believes the decision to be reasonable and to have been taken in a reasonable manner:102. … Was the action reasonable?103. Yes.104. … Was the action undertaken in a reasonable manner?105. Yes, though it was seriously flawed. In contrast (at [82]) of her submissions Ms Labuguen asserts that the decision to promote Ms Leary-Smith and the failure to promote Ms Labuguen was “undertaken in an unreasonable manner” and lists a number of purported irregularities in the selection process. Given this apparent inconsistency and because Ms Labuguen is not legally represented, I decided it would be unsafe to rely on any apparent concession and proceed on the basis that Ms Labuguen contends the promotion decision was neither reasonable, nor taken in a reasonable manner.Should “late” material be taken into account? Comcare contends that the matters raised in Ms Labuguen’s submissions (at [80] to [101]) (the offending submissions) were not the subject of evidence or argument during the hearing and should be disregarded by the Tribunal. In addition Comcare contends that the Tribunal should not have regard to the report of the selection committee referred to in Ms Labuguen’s submissions, which was neither tendered, nor referred to, at any stage during the four-day hearing. The situation that has arisen, where in final written submissions, a self-represented party seeks to rely on new “evidence” and make fresh arguments, is not uncommon. It reflects the difficulty many self-represented parties have in distinguishing evidence from submissions and, when making submissions, discovering material they believe to be relevant, is not before the Tribunal. Whether that material should be taken into account requires consideration of, among other things, the nature of the evidence sought to be adduced, the reason for the late application, and any prejudice likely to be suffered by the opposing party. Those factors must be assessed having regard to the direction that the Tribunal provide a mechanism of review that is “fair, just, economical, informal and quick” (s 2A of the Administrative Appeals TribunalAct (Cth) 1975).

Ratio Decidendi

Legal Principle Established

The experts agree that the task of identifying the causes of an adjustment disorder can be difficult. As Dr Skinner explained, identifying the particular stressor that contributes to the development of an adjustment disorder is inherently difficult because individuals react differently to different stressors. She went on to explain that in giving a history, a person might report problems they perceive to be causative of the disorder, and overlook, or not recognise, other factors which might also have played some role. This, according to Dr Skinner presents a further difficulty in identifying the causes of an adjustment disorder. Consideration I accept Ms Labuguen now holds the genuine belief that she quickly “got over” the failed promotion. However I am unable to accept that claim because it is inconsistent with the available evidence, notably the contemporary evidence. Ms Labuguen’s uncharacteristic behaviour in contacting and berating members of the selection panel and others, illustrates the extent to which she was effected by the decision. On receiving notice of that decision she widely circulated a number of emails containing highly colourful and emotive language and persisted even after CMDR Milward gently suggested by email that she cease doing so. It is relevant in my opinion that up to that point there is no evidence that Ms Labuguen had ever acted inappropriately in the workplace or that any of her managers had cause to counsel or reprimand her. CMDR Milward considered Ms Labuguen to be a model employee and remains of that opinion. Ms Labuguen’s claim that she quickly “got over it” is also inconsistent with her admission in submissions that she took seven days leave (a combination of “flex” and “personal” leave) after 22 October 2007 because she “succumbed as much to being short-staffed and over-worked since 2007, and that she used those days … to recompose herself before resuming her duties”. As the experts point out, identifying the cause or causes of an adjustment disorder is seldom an easy task. This case is no exception. Both consider the discovery made by Ms Labuguen in February 2008 and her belief that the Department’s response to her concerns was inadequate to be the major causes of her adjustment disorder. The difference between Drs Skinner and Stephan about the role played by the promotion decision in my opinion is one of degree. Dr Skinner is confident that it played a role. Despite revising his initial opinion, Dr Stephan’s evidence taken overall suggests that he considers it a possibility although unlikely. The material provided by Ms Labuguen’s GP and Dr Burman is of limited assistance as neither appear to have been given a history about the events surrounding the failed promotion. The absence of any evidence of Ms Labuguen seeking treatment prior to May 2008, while relevant, is not determinative. That there is a delay between the period a person experiences the stressor and seeks medical treatment or requires time off work does not necessarily mean the stressor did not contribute to the condition. If that were so, Ms Labuguen’s February 2008 discovery would be excluded as a cause of her condition — a proposition at odds with the weight of medical evidence.