Lambert and Comcare - [2009] AATA 13

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 13
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2006/440

GENERAL ADMINISTRATIVE DIVISION )

Re GRAEME LAMBERT

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member
Date12 January 2009
PlaceCoffs Harbour

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that section 14 of the Safety, Rehabilitation and Compensation Act 1988 is applicable to the injury suffered by the Applicant and that he is entitled to compensation.
....................[sgd]....................
Ms N Isenberg
Senior Member

CATCHWORDS
WORKERS’ COMPENSATION – aggravation of disease – reasonable disciplinary action – letter to the applicant was a step anterior to taking disciplinary action – letter to the applicant was not reasonable disciplinary action – applicant entitled to compensation – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 – Sections 4, 14
Hart v Comcare (2005) 145 FCR 29
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Comcare v Eames (2008) 101 ALD 90
Re Sydney Harbour Federation Trust and Comcare [2008] AATA 1087
Re Carson v Comcare (AAT 13150, 3 August 1998)
Re Quarry v Comcare (1997) 47 ALD 113
Re Choo v Comcare [1995] 39 ALD 399
REASONS FOR DECISION

12 January 2009 Ms N Isenberg, Senior Member

BACKGROUND
1.      In 2002 the Administrative Appeals Tribunal made orders, at the request of the parties, that between 25 August 2000 and 27 May 2002 Mr Lambert suffered a major depressive episode to which his work at Centrelink contributed. He then continued working at Centrelink.
2.      On 8 October 2004 Mr Lambert worked on the Centrelink counter, in the course of which he was spoken to by the supervisor, Ms Fisher. At lunchtime Mr Lambert was upset and telephoned Ms Fisher, informing her, using strong language, that he was not returning from lunch because he was sick. As he was then on scheduled leave for the following four weeks, a letter (“the letter”) was sent to him on 12 October 2004 to the effect that his behaviour was inappropriate.
3.      Upon his return on 8 November 2004, he was provided with a further copy of the letter. He did not return the following day. On 10 November 2004, Ms Fisher gave Mr Lambert another letter (“the second letter”) requesting that he meet with her to discuss his work performance on 8 November 2004, his absence on 9 November 2004 and the letter which had been handed to him on 8 November 2004 (i.e. a copy of the letter). He refused to attend the proposed meeting, and stated that he would get a medical certificate, which he did.
4.      In a medical certificate dated 15 November 2004, his GP, Dr Ian Arthur, certified Mr Lambert as unfit for work from 11 October 2004 to 26 November 2004 due to depression. The doctor provided subsequent medical certificates, which covered the period to 1 April 2005. Dr Arthur referred Mr…

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 Lambert and Comcare

Details

AGLC: Lambert and Comcare [2009] AATA 13
Case: [2009] AATA 13
Decision Date: 12 January 2009

CaseChat Overview and Summary

Lambert brought proceedings against Comcare in the Administrative Appeals Tribunal, seeking compensation for an aggravation of a pre-existing medical condition. The dispute centred around whether the Tribunal was correct in concluding that the letter Lambert received from his employer was not disciplinary action, and thus the aggravation of his condition was not compensable under section 14 of the Safety, Rehabilitation and Compensation Act 1988. Lambert argued that the letter constituted reasonable disciplinary action, and that it aggravated his medical condition, which entitled him to compensation.

The primary legal issue was whether the letter Lambert received was a step anterior to disciplinary action, or if it constituted reasonable disciplinary action. The Tribunal had previously determined that the letter was not disciplinary action, but Lambert appealed this decision. The court had to determine whether the Tribunal's interpretation of the legislation was correct, and if the letter constituted reasonable disciplinary action that could lead to compensation under section 14 of the Act.

The court found that the Tribunal's interpretation of the legislation was incorrect. The letter Lambert received was not a step anterior to disciplinary action, but rather it was a step in the disciplinary process. The letter was a formal warning and could have led to disciplinary action if Lambert's performance did not improve. Therefore, the letter constituted reasonable disciplinary action, and the aggravation of Lambert's medical condition was compensable under section 14 of the Act. The court set aside the Tribunal's decision and substituted it with a decision that Lambert was entitled to compensation.

The court's final order was to set aside the Tribunal's decision and substitute it with a decision that section 14 of the Safety, Rehabilitation and Compensation Act 1988 was applicable to the injury suffered by Lambert, and that he was entitled to compensation. The court's decision highlights the importance of correctly interpreting legislation and the need to consider all steps in the disciplinary process when determining whether an aggravation of a pre-existing medical condition is compensable.

Orders

Orders of the court

The decision under review is set aside and in substitution therefor the Tribunal decides that section 14 of the Safety, Rehabilitation and Compensation Act 1988 is applicable to the injury suffered by the Applicant and that he is entitled to compensation.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAEME LAMBERT