Laviano and Comcare (Compensation)

[2018] AATA 3912

Laviano and Comcare (Compensation) [2018] AATA 3912 (11 September 2018)

Division:GENERAL DIVISION

File Number(s):      2015/5068

Re:Guy Laviano

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:11 September 2018

Date of written reasons:        16 October 2018

Place:Sydney

The reviewable decision dated 10 August 2015, which affirmed the 24 October 2014 determination that Mr Laviano was not entitled to compensation in respect of an injury he suffered, is affirmed.

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

Mrs J C Kelly, Senior Member

Catchwords

WORKERS’ COMPENSATION – Applicant suffered from an adjustment disorder/anxiety/depression following meeting and email from supervisor – content of meeting and email relate to supervisor’s concern that the Applicant recorded members of public and staff without consent - whether ailment was suffered as a result of reasonable administrative action taken in a reasonable manner – decision affirmed 

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 ss 4, 5A, 14

CASES

Comcare v Drinkwater [2018] FCAFC 62 (26 April 2018)

Comcare v Martin [2016] HCA 43 (9 November 2016)
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21(18 March 2012)
Lotocka v Comcare [2014] AATA 59 (6 February 2014)   

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

16 October 2018

1. Mr Laviano worked at the Fair Work Ombudsman (FWO). On 17 June 2014 he submitted to Comcare a Workers' Compensation Claim Form for "adjustment disorder/anxiety /depression" which he first noticed between 27 February 2014 and 10 March 2014. He wrote that he was injured while he w          as working on his computer at work when he received an email from Mr Delamont and the action that caused his illness was a "directive of Mr Delamont inciting" him "to commit a crime that exposes him to a maximum five year jail sentence." "The urging plus repeated inciting to commit the crime" actually made him ill.

2. I emphasise that was the formulation of the claim in Mr Laviano's application for compensation.

3. On 24 October 2014 the delegate decided that Mr Laviano's claim for workers compensation was excluded because of the operation of the reasonable administrative action provisions of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) because his illness was caused by lawful reasonable administrative action carried out in a reasonable manner in relation to employment matters.

4. Following extensions of time to lodge a request for reconsideration on 30 June 2015, Mr Laviano requested a reconsideration of the determination dated 24 October 2014. That was undertaken notwithstanding Mr Laviano's request that time be further extended.

5. On 10 August 2015, a review officer affirmed the 24 October 2014 determination of the delegate that Mr Laviano was not entitled to workers compensation for an ailment he suffered. On 12 October 2015 Mr Laviano applied to the Tribunal for review of Comcare's 10 August 2015 decision.

6. The Respondent, Comcare, accepts the following:

   (a)Mr Laviano suffered from an adjustment disorder/anxiety/depression which is an ‘ailment’ as defined in section 4 of the SRC Act, and

   (b)the ailment was contributed to a significant degree by his employment with the FWO, for the purposes of section 5A of the SRC Act such as to fall within the meaning of ‘disease’, and

   (c)the ailment arose between 27 February 2014 and 10 March 2014.

7. The issue for the Tribunal to decide is whether the ailment was suffered as a result of reasonable administrative action taken in a reasonable manner such as to exclude the ailment from the definition of injury for the purposes of section 5A of the SRC Act.  If the Tribunal finds that the action was not reasonable administrative action taken in a reasonable manner, Comcare will be liable to pay compensation to Mr Laviano in respect of the claimed injury under section 14 of the SRC Act.

   The evidence

8. The critical evidence in this case was the evidence of Mr Laviano and Mr Delamont, the director of the team in which Mr Laviano worked. The documentation before the Tribunal included that provided by Comcare pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, known as the T documents, and documentation Mr Laviano provided.

   Background

9. At the time of injury, Mr Laviano was employed as a Fair Work Infoline Adviser within the call centre of the FWO.  On 27 February 2014, Mr Delamont spoke to Mr Laviano when he returned to the call centre after three months, which included a month's leave and before that, two months working in another area of the business. Among other matters, there was discussion about audio recording that Mr Laviano had made in the workplace. During the course of the conversation, Mr Delamont requested Mr Laviano to stop recording in the workplace and Mr Laviano agreed. Mr Delamont also requested to listen to the recordings to find out what had been recorded.

10. On 6 March 2014, Mr Delamont sent Mr Laviano an email which said:

    Morning Gus,

    I refer to our conversation on Thursday 27 February 2014, during which I sought to clarify the nature of the audio recordings referred to in the AAT Lotocka decision dated 6 February 2014(a copy of the decision is located at Specifically, paragraphs 28 to 30 of that decision refer to Ms Lotocka's representative attempting to tender recordings of the FWO's call centre which were made by you.

    In response, you told me that this referred to recordings in the FWO call centre that you had made of your side of telephone conversations with customers for self-development and training purposes. You advised that the customer side of the calls were not recorded however, the conversations of other Advisers, including when they were providing advice on the phone may have been captured in the background of your recordings.

    During the conversation, I asked you if you had received permission to make these recordings. You did not have permission and asked whether this was necessary as they were made for self-development purposes. You were aware that when the customer side of the call is recorded, permission would be required. I mentioned there may also be notification requirements for making recordings in the workplace particularly where others are not aware they are being recorded.

    Gus, I am directing you to immediately cease making any recordings in the workplace. If you would like to review your own telephone calls for training purposes, you may arrange to listen to these through your team leader.

    Please provide me a copy of all recordings made in the workplace, including those referred to in the Lotocka decision. Please provide a copy of these recordings to me by 5pm on Monday 10 Match 2014.

    If you have any questions in relation to the above, please do not hesitate to discuss them with me.

    Kind Regards,

    Simon

11. On 10 March 2014 Mr Laviano sought medical treatment from Dr Peter Nakhle, a general practitioner. The first report provided by Dr Nakhle is dated 27 August 2014, although there was or were medical certificates prior to that time. In relation to the consultation on 10 March 2014, Mr Laviano told the doctor the following as recorded in the August report:

    He was having work-related issues and was feeling anxious… the injury was sustained at work… he was directed to hand over his personal recordings in February and March 2014.

12. The report goes on:

    He says that they still want him to hand over the recordings. Mr Laviano fears that if he hands over the recordings he faces a very real risk of going to jail for up to five years.

13. It is not clear to the Tribunal when Mr Laviano said those precise words to the doctor.

14. Mr Laviano argued that Mr Delamont's actions during the discussion on 27 February 2014 and sending the email were unreasonable administrative actions and were not carried out in a reasonable manner. He also argued that in fact, as the Tribunal understands it, they were not administrative actions at all and therefore did not fall within the scope of section 5A of the SRC Act.

15. By the end of the hearing, Mr Laviano's arguments had become fewer, but for completeness I list what I understood during the course of the hearing, his arguments to be.

16. He argued that Mr Delamont:

    ·knew that Mr Laviano was susceptible to psychological injury and/or was a party to a strategy within the FWO to terminate Mr Laviano's employment;

    ·should have got back to Mr Laviano after the meeting in person rather than by email;

    ·did not follow his usual procedure of providing a summary of what had happened in the meeting after the meeting, because the 6 March email only related to the recording issue.

17. There was also some suggestion that Mr Delamont should have provided or invited a support person to assist Mr Laviano during the meeting on 27 February 2014.

18. At the end of the day, the Tribunal did not understand Mr Laviano to press the question of a support person. In fact, the Tribunal finds that the recollections of Mr Laviano and Mr Delamont about that meeting were very similar. It was a meeting that was held between Mr Laviano and Mr Delamont respectfully and courteously. There was no animosity of any kind.

19. During that meeting and as reflected in the email of 6 March 2014, the issue arose about whether Mr Laviano was recording in the workplace, because of a reference in a court decision that Mr Delamont had seen. He did not understand what the reference meant; that is why he raised it at the meeting. He was surprised to learn from Mr Laviano that the recordings referred to were actually made by Mr Laviano at his desk in the workplace. Mr Delamont expressed concern about what was recorded. He requested Mr Laviano to cease recording at that time and Mr Laviano agreed. He also requested or expressed concern about what had been recorded. Mr Laviano accepted that there may have been some conversations or what people have said that may have been recorded.

20. Given that concern, Mr Delamont wished to have an opportunity to listen to the recordings and requested that of Mr Laviano. At the end of the meeting he advised Mr Laviano he would get back to him. I note that in terms of the actual meeting there was simply, on the evidence, no reason for any support person to be necessary during the course of the meeting. There was merely information-gathering and it is apparent that Mr Laviano was not actually concerned by what happened in the meeting, although he was alive to the question of what legal issues might arise in relation to his recording because he obtained written legal advice confirming earlier oral advice that he had received in 2012 about recording in the workplace. He received the written advice on 28 February 2014.

21. Mr Delamont, on the evidence, consulted the Human Resources and Legal sections of the FWO and then sent the email on 6 March 2014.

22. On the evidence, it is the email with which Mr Laviano has a real concern. He said that he was taken by surprise. He felt that Mr Delamont should have had another face to face meeting.

23. The Tribunal does not agree with that assessment of the circumstances. The circumstances raised and of concern to Mr Delamont were serious. He had concerns about responsibilities to clients and employees within the organisation because people were not aware of, and had not consented to, being recorded. In that circumstance and consistent with past practice as an earlier email on  3 September 2013 showed, Mr Delamont sent a summary of what had occurred in the meeting, directed Mr Laviano to cease recording, and also requested that he provide copies of the recordings by 10 March 2014.

24. Mr Laviano attended work on the 7 March 2014. His solicitor then communicated with, amongst others, Mr Delamont, on 9 March 2014.

25. Section 5A of the SRC Act excludes liability for:

    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.

26. First, the Tribunal finds that the actions that were taken by Mr Delamont during the meeting on 27 February 2014 and in the sending of the email were administrative actions, not operational actions as referred to in the case of Commonwealth Bank of Australia v Reeve and also as elaborated upon in the Full Federal Court in Comcare v Drinkwater.[1]

    [1] [2012] FCAFC 21 (18 March 2012); [2018] FCAFC 62 (26 April 2018)

27. Further, each of the actions that Mr Delamont undertook during the meeting and by sending the email dated 27 March, was reasonable action and undertaken in a reasonable manner.

28. Those actions during the meeting were:

    ·questioning Mr Laviano about the recordings referred to in the Lotocka v Comcare decision;[2]

    ·requesting that he cease making recordings while Mr Delamont made enquiries, and

    ·requesting an opportunity to listen to those recordings.

    [2] [2014] AATA 59 (6 February 2014).

29. Mr Delamont may have been negligent if he had not acted as he did.

30. In relation to the email of 6 March 2014, as the Tribunal has said, there is an earlier email where Mr Delamont has followed the same course of providing a summary. In this case the email did not relate in detail every matter, but the critical matter of concern, that is the recordings, was detailed, and given that he provided a directive to Mr Laviano to stop recording and also made the request that he provide information or copies of the recordings by 10 March 2014, it was entirely appropriate for that matter to be set out in writing.

31. There is nothing in the content of the email in tone or in any other respect that the Tribunal finds would lead it to make a finding that the communication was not done in a reasonable manner. The Tribunal apprehends that Mr Laviano sincerely believes that there was a strategy within the organisation to terminate his employment. He suggested that he thought that Mr Delamont was perhaps part of that strategy. The Tribunal does not accept that was the case. It notes that in Comcare v Martin their Honours commented at paragraph 46 that somebody's perception is not the test and it is not relevant.[3] What is relevant, is the action that was done and the manner in which it was undertaken.

    [3] [2016] HCA 43 at [46] (9 November 2016).

32. For the reasons set out above, the Tribunal finds that Mr Delamont's actions during the meeting of 27 February 2014 and in sending the email dated 6 March 2014 were reasonable administrative actions and were undertaken in a reasonable manner.

33. The reviewable decision dated 10 August 2015, which affirmed the 24 October 2014 determination that Mr Laviano was not entitled to compensation in respect of an injury he suffered, is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate

Dated: 16 October 2018

Date(s) of hearing:	10 & 11 September 2018
Applicant:	In person
Counsel for the Respondent:	Matthew Gollan
Solicitors for the Respondent:	Michael Snell and Victoria Ginnane, Lehmann Snell Lawyers