Senior Member B J Illingworth and Member Dr L Stephan
28 July 2023
INTRODUCTION
Mr Dennis Keating (“the Applicant”) has applied to the Administrative Appeals Tribunal (“the Tribunal”), to review the decision by Comcare (“the Respondent”), dated 16 October 2020, which denied liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for the Applicant’s Major Depressive Disorder (“MDD”).[1]
[1] Exhibit A, T119, p 538–542.
The Applicant was represented by Counsel, Josephine Battiste, of Mitchell Chambers (“Applicant’s Counsel”) on the instructions of Chloe Callus of Slater & Gordon Lawyers and the Respondent was represented by Counsel, Mr Paul d’Assumpcao, of Howard Zelling Chambers (“Respondent’s Counsel”) on the instruction of Ms Amanda Danti of Moray & Agnew. The Tribunal received into evidence the documents as listed in the exhibit list, held on the Tribunal file.
ISSUES
The issues before the Tribunal are correctly identified in the Applicant’s Statement of Facts, Issues and Contentions (“SoFICs”), namely:
(a)Was the aggravation of the ailment (Applicant’s MDD) contributed to, to a significant degree, by the Applicant’s employment with the Department of Defence (“the Department”)?
(b)Is the Applicant’s ailment (MDD) excluded from the definition of “disease” under the SRC Act because the aggravation of the Applicant’s existing MDD was as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment? In other words, but for that reasonable administrative action taken in a reasonable manner, would the Applicant’s employment with the Department still have significantly contributed to the aggravation of the Applicant’s MDD?[2]
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Keating and Comcare (Compensation) [2023] AATA 2274
Case
[2023] AATA 2274
Decision Date
CaseChat Overview and Summary
This matter concerned an application by the Applicant, a 70-year-old former employee of the Department, for workers' compensation for a major depressive disorder (MDD) with associated anxiety. The Applicant alleged that the aggravation of his pre-existing MDD was caused by work-related stress, specifically a conflict with two supervisors, Mr I and Col H, and subsequent administrative actions. The Respondent, Comcare, argued that any aggravation of the Applicant's condition was a result of administrative action taken in a reasonable manner, and therefore excluded from compensation under section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The case was heard by B J Illingworth SM and L Stephan M.
The primary legal issue before the Tribunal was whether the Respondent could successfully rely on the exclusion in section 5A of the SRC Act. This required determining whether the aggravation of the Applicant's MDD was a consequence of administrative action taken by the Department in a reasonable manner. The Applicant contended that the events of 6 March 2019, including a meeting with Mr I and a subsequent meeting with Mr Luke, were the key causal factors for the aggravation, and that these actions were not reasonable administrative actions. Alternatively, the Applicant argued that even if subsequent administrative actions, such as disciplinary procedures, were causal, they were not undertaken reasonably, thus disentitling the Respondent from relying on the exclusion.
The Tribunal considered the definition of "ailment" under section 4(1) of the SRC Act, which includes any mental disorder. It was not disputed that the Applicant suffered from MDD, an ailment, and that its aggravation was contributed to by his employment. The Tribunal focused on the administrative actions taken by the Department, particularly the Notification of Suspected Misconduct and the subsequent investigation. The Tribunal accepted evidence that the Notification of Suspected Misconduct was a notice of suspension, not a notice of an intended decision requiring prior comment. It found that the Applicant was given an opportunity to respond to the notification upon his return to work, which included various attachments detailing the alleged misconduct. The Tribunal also considered emails exchanged between departmental officers regarding the Applicant's mental health and the safety of the workplace, and the Applicant's argument that these were not disclosed and that their omission denied him procedural fairness.
Orders
Orders of the court
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Background
Background to the litigation
The meaning of ailment is defined in s 4(1) of the SRC Act, which provides:“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”BACKGROUND Both the Applicant and Respondent have provided a history of the matter in their respective SoFICs.[4] The Tribunal will summarise the chronology of relevant events, as referred to by the parties of this application. [4] Applicant’s SoFICs, p 2–8; Respondent’s SoFICs, p 1–6. The Applicant is 70 years old, born on 28 March 1953.[5] The Applicant was employed by the Department from approximately 22 October 2007.[6] [5] Exhibit G, p 1 [2]. [6] Exhibit G, p 1 [3]; Exhibit A, T103 p 432, 434; Note: Respondent’s SoFICs p 2 [4.2] states 23 October 2007. From in or about mid to late 2015, the Applicant began to have symptoms of severe depression and anxiety, secondary to work-related stress. In about May 2016, the Applicant began having suicidal ideations and consulted his General Practitioner (“GP”). From, on or about 8 April 2016, following a meeting with his supervisors; Mr I and Col H, the Applicant’s condition escalated.[7] [7] Exhibit G, p 2 [4]; Exhibit A, T37 p 158 [3], T19–20. On 15 June 2016, the Applicant’s GP diagnosed him with MDD, with associated anxiety secondary to work-related stress, which was contributed to, by a conflict with Mr I and Col H. The Applicant was prescribed anti-depressants and referred to a psychiatrist.[8] On 21 July 2016, the Applicant’s psychiatrist, Dr Arya, confirmed the GP’s diagnosis.[8] Exhibit A, T31 p 124 [7]; T37 p 158 [3]; Exhibit G, p 1 [4]. On 11 August 2016, the Applicant lodged a Workers Compensation Claim for MDD.[9] On 23 August 2016, the Applicant’s psychiatrist, Dr Arya, provided a report, again, confirming the GP diagnosis of MDD with associated anxiety, secondary to work-related stress, and recommended the Applicant not return the same workplace environment as the risk of relapse was high.[10] [9] Exhibit A, T29. [10] Exhibit A, T35 p 144–5. On 24 August 2016, the Department obtained a report from consultant psychiatrist, Dr Hundertmark,[11] and the Applicant’s GP,[12] who both diagnosed the Applicant with MDD (with anxiety symptoms) and opined the Applicant could not return to the same workplace as it would be significantly detrimental to him, but he could return to work if there were alternative arrangements including a different supervising/management structure.[11] Exhibit A, T36.[12] Exhibit A, T37. From October 2016, following the medical advice of Dr Arya, Dr Hundertmark and the Applicant’s GP, the Applicant transitioned into his role with the Estate Planning and Development team, with a permanent transfer taking place on 3 February 2017.[13] The Applicant worked in various roles with the Department, but at the time the aggravation of his “injury” (MDD) occurred he was in the lead role of Estate Management and Planning, located in Darwin.[14][13] Exhibit A, T50 p 2; Note: Respondent’s SoFICs p 2 [4.10] states 20 February 2017.[14] Exhibit G, p 1 [3].
Evidence
Evidence Before The Court
On 4 March 2021, the Applicant accepted voluntary redundancy from the Respondent.[58] THE EVIDENCE[58] Note: Exhibit B(3), p 8 [11] states February 2021.The Applicant’s Opening The Applicant’s Counsel submits the issues before the Tribunal are narrow. There is no dispute the Applicant is suffering from aggravation of his MMD, which is an ailment, as defined by s 4 of the SRC Act; and there is no dispute the aggravation of the Applicant’s previously accepted Workers Compensation Claim for MDD was contributed to, to a significant degree, by his employment with the Department. The issue is whether the Respondent can demonstrate the aggravation of the Applicant’s MDD falls within the exclusion provided in s 5A of the SRC Act on the basis that the aggravation was a result of administrative action taken in a reasonable manner in respect of the Applicant’s employment by the Department. There is no conflict with the medical evidence insofar as the diagnosis of MDD is concerned. The Applicant submits it was the events of 6 March 2019 that resulted in the aggravation of his MDD, enlivening his entitlement to compensation. The Applicant submits the key causal event of the aggravation was not the result of reasonable administrative action that falls within the exclusion provision. The Applicant also submits his MDD was further impacted upon by subsequent events in the workplace, including disciplinary procedures. Alternatively, if the Tribunal found it was the subsequent administrative action that was a causal factor to the aggravation of the Applicant’s MDD, the exclusion provision would, nonetheless, not apply because the Department did not undertake reasonable administrative action in a reasonable manner. Two employees of the Department are identified as impacting upon the Applicant’s MDD diagnosed in 2016, namely Mr I and Col H (First-and Second-Line Managers at that time). He was, then, diagnosed with MDD with suicidal ideations. He made a successful gradual return to work. His medical practitioners all emphasised the importance of the Applicant not returning to the same work environment involving either of those two individuals.[59] This was also reflected in the Applicant’s medical certificates relating to his work. [59] Exhibit A, T35–37. The Applicant’s transition back into the workplace included an undertaking, given in 2018 by the Department, that he would not be required to work with either Mr I or Col H, with appropriate arrangements to be put in place to ensure this continued. It was the events of 6 March 2019, the meeting with Mr I, compounded by a subsequent meeting that day with Mr Luke, which resulted in the Applicant feeling obliged to disclose his past history of conflict. He was on sick leave thereafter until 23 April 2019 due to an unrelated illness. On his return to work, he was informed of an investigation in relation to the alleged breach of the Code of Conduct and he was suspended immediately, with pay. The Applicant was critical of that process particularly having regard to the Applicant’s prior history with Mr I and Col H and their knowledge of his MDD.
Decision
Reasons for decision
The Tribunal will not turn to consider the varies stages in that administrative process that was set in motion on 23 April 2019. Code of Conduct Decision (“Notification of Suspected Misconduct”) Ms Kliger was the delegate responsible for the Notification of Suspected Misconduct, and its consequence. She said the Notification of Suspected Misconduct was not a notice which required or obligated the Department to provide an opportunity for the Applicant to comment, as was suggested in cross-examination. The Tribunal accepts this evidence. It was a notice of suspension, not a notice of an intended decision. The Applicant was given the opportunity to respond to the Notification of Suspected Misconduct that was given to him when he returned to work, on 23 April 2019. That Notice contained four attachments, namely: (i) Code of Conduct Referral Checklist from Ms Kim MacDonald; (ii) the “Record of Incident” from Mr Luke;(iii) the “Record of Incident” from Ms Rendell; and (iv) the Privacy statement. The Code of Conduct Procedures and the Policy Guideline–Code of Conduct were enclosed. The Applicant’s Counsel was critical of the process, because Ms Kliger, and others, did not provide to the Applicant copies of emails she received. The Tribunal has considered the emails that were provided to Ms Klinger. There are different email trails, and we will not summarise each email. The Tribunal notes an email, dated, 25 February 2019, appears unrelated to the events of 6 March 2019. One email is at 6:45AM on 7 March 2019, from the Director of Conduct and Performance, related to the commencement of the process. An email from Ms MacDonald to HR Service Branch at 8:05AM, on 7 March 2019, gave a brief summary of the previous day’s events, advised her manager, Mr Buckley, wanted the matter referred to the Code of Conduct team and advised Ms Hyde was present and raised an unrelated performance matter relating to Ms Hyde. A further urgent email, from Ms Inches,[156] does not appear to have a date and time when sent, but forms part of this ongoing communication. The email is to Ms Waddell and Ms Kliger, and the subject of the email is Referral of Code Matter for Investigation. She refers to a conversation she had with Ms MacDonald who was concerned about the risk of the Applicant returning to the workplace and gave the reasons for the concern including the Applicant’s mental health, and the wellbeing of other employees including one who was pregnant. Ms Inches requested delegation authority with regards the Applicant’s Suspension from Duty and reminds the recipients of the need to ensure the Applicant is aware of supports available to him to ensure he is mentally healthy during the process. She notes the Applicant was not in the workplace that day. [156] Exhibit M, JK-2. It is argued the Applicant did not have the opportunity to respond to those emails and they should have been produced in addition to the statements and the failure to so resulted in the Applicant not being afforded procedural fairness.