Keillor and Comcare (Compensation) - [2022] AATA 228

Keillor and Comcare (Compensation) [2022] AATA 228 (15 February 2022)
Division:GENERAL DIVISION
File Number: 2019/7158
Re:Kevin Keillor
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:15/02/2022
Place:Brisbane

The Tribunal sets aside the decision under review and, in substitution, decides that Comcare is liable to pay compensation to the Applicant pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the claimed psychological injury of “anxiety/depression”.
.............[SGD]...........................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION - Whether Comcare is liable to compensate the Applicant pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 - Whether the performance management process contributed, in a significant degree, to the Applicant’s disease - Whether the performance management process was a reasonable administrative action - decision under review set aside
LEGISLATION
Public Service Act 1999 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Chenhall (1992) 37 FCA 75
Comcare v Martin (2016) 258 CLR 467
Comcare v Martinez (No 2) (2013) 212 FCR 272
Lee and Comcare [2012] AATA 867
Lynch and Comcare (2010) 114 ALD 394
Melder and Comcare [2013] AATA 534
Wieczorek and Comcare [2017] AATA 994
REASONS FOR DECISION
Deputy President J Sosso
15/02/2022
INTRODUCTION

Mr Kevin Keillor (the Applicant) seeks a review of a decision of Comcare of 4 September 2019 that affirmed a determination of 10 July 2019 rejecting liability under s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for “Anxiety/Depression” – Exhibit 1 T13 pp. 121 – 123, Exhibit 1 T17 pp. 147 – 153.
From January 1975 until May 2013, the Applicant served as a Police Officer in the Queensland Police Service, ultimately attaining the rank of Inspector – Exhibit 12 para 4.
After leaving the Queensland Police Service, the Applicant had a number of different jobs; however, his longest period of service was with the Department of Immigration and Border Protection (DIBP), between December 2014 and December 2017, where he was employed as a Senior Investigations Officer – Exhibit 12 paras 2 – 3.
On 8 January 2018, the Applicant commenced employment with the Australian Building and Construction Commission (ABCC). The Applicant was employed as an APS Level 6 – Senior Investigator – Exhibit 1 T11 p. 57.
The Applicant’s 2018/2019 Performance Agreement provided that he had the following duties – Exhibit 1 T11 p. 57:
“(a)      meeting KPI’s in accordance with the Northern Regional Business Plan;
(b)       producing work requiring little or no revision before finalisation;
(c)       completing tasks within a set timeframe;
(d) under minimal supervision and to a high standard, completing investigations and compliance with activities; and
(e)demonstrating leadership and accountability within the Northern Regional Operations Team and actively working with the team to achieve the team’s objectives and to foster a strong and positive corporate culture.”
The Applicant had a number of responsibilities, including conducting site visits, conducting code inspections and code audits, and investigating alleged breaches of the Fair…

Grounds of appeal

[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.

Continue reading Keillor and Comcare (Compensation)

Details

AGLC: Keillor and Comcare (Compensation) [2022] AATA 228
Case: [2022] AATA 228
Decision Date: 15/02/2022

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against a decision by Comcare regarding compensation for a psychological injury. The applicant sought compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for a condition of anxiety and depression, alleging it was contributed to, in a significant degree, by a performance management process undertaken by their employer. The central dispute was whether Comcare was liable to compensate the applicant, which hinged on whether the performance management process constituted reasonable administrative action taken in a reasonable manner.

The court was required to determine two primary legal issues. Firstly, whether the applicant had suffered a "disease" as defined by the Act, meaning the condition was contributed to, to a significant degree, by their employment. Secondly, and crucially, the court had to consider whether the performance management process, which allegedly contributed to the applicant's disease, was reasonable administrative action taken in a reasonable manner. If it was not, then the exclusion under section 5A(1) of the Act would not apply, and Comcare could be liable.

The court's reasoning was guided by the High Court's decision in *Comcare v Martin* (2016) 258 CLR 467. This precedent established that for the exclusionary phrase in section 5A(1) to apply, the administrative action must be a cause in fact of the disease, meaning the employee would not have suffered the disease if the administrative action had not been taken. The purpose of this exclusion is to insulate legitimate human resource management actions from compensation claims. However, the court found that in this instance, the administrative action undertaken by the ABCC was carried out in an unreasonable way.

Consequently, the Tribunal set aside the decision under review. In substitution, the Tribunal decided that Comcare was liable to pay compensation to the applicant pursuant to section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) in respect of the claimed psychological injury of anxiety and depression.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons given above, the Tribunal finds that the administrative action undertaken by the ABCC was carried out in an unreasonable way.DECISION The Tribunal sets aside the decision under review and in substitution decides that Comcare is liable to pay compensation to the Applicant pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the claimed psychological injury of “anxiety/depression”.

Ratio Decidendi

Legal Principle Established

Both Ms Skennar QC and Mr Clark (SBR at para 15) drew the Tribunal’s attention to the High Court decision of Comcare v Martin (2016) 258 CLR 467, and, in particular to the following paragraphs:“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. 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.”(footnotes omitted) CONSIDERATIONIssue for determination