Liu and Comcare (Compensation) - [2018] AATA 3200

Liu and Comcare (Compensation) [2018] AATA 3200 (4 September 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5932
Re:Melissa Liu
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:4 September 2018
Place:Canberra

The reviewable decision of 15 September 2016 is affirmed.
........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – SRC Act s 5A – whether Ms Liu suffered her psychological ailment as the result of reasonable administrative action taken in a reasonable manner in respect of her employment – whether the taking of the reasonable administrative action was an event without which Ms Liu’s psychological ailment would not have been a disease – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No2) 302 ALR 608
Comcare v Mooi (1996) 69 FCR 444
Lim v Comcare [2017] FCAFC 64
Lynch and Comcare [2010] AATA 38
REASONS FOR DECISION
Deputy President Gary Humphries
4 September 2018
INTRODUCTION

Ms Melissa Liu was born in China but migrated to Australia in 1999, and speaks English as a second language. She has Masters degrees in Petroleum and Geology (obtained in China) and in Commerce (obtained in Australia).
In July 2007 Ms Liu commenced work as a non-ongoing APS employee of the then Department of the Environment and Water Resources (the Department, which term includes its subsequent iterations). She became an ongoing APS employee of the Department in October that year.
On about 11 April 2014 she suffered a psychological injury in the course of her employment with the Department, and for which she has been assessed as having a whole person impairment of 15%. She was advised in January 2016 that her employment there was terminated.
She lodged a claim on 23 May 2016 for workers compensation in respect of a psychological injury[1] pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 21 July 2016, a delegate of Comcare disallowed a claim for adjustment reaction with depressive reaction because it fell within the exclusionary provisions of s 5A of the Act. The delegate was satisfied her condition arose as a result of reasonable administrative action undertaken in a reasonable manner.
[1] In this decision, italicised text is generally used to indicate direct quotations.
On 15 August 2016, Ms Liu requested a reconsideration of this determination. On 15 September 2016, Comcare affirmed the determination.
On 2 November 2016, she applied to the Tribunal for merits review of the reviewable decision dated 15 September 2016.
FACTUAL BACKGROUND
At the hearing of this matter there was substantial common ground between the parties about the events which gave rise to Ms Liu’s psychological injury in April 2014. The Tribunal took live evidence only from Ms Liu herself and from two (former) departmental officers who had supervised her. The following account of the relevant events reflects, except where indicated, that common ground shared by the witnesses.
In the period between 2007 and 2014…

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 Liu and Comcare (Compensation)

Details

AGLC: Liu and Comcare (Compensation) [2018] AATA 3200
Case: [2018] AATA 3200
Decision Date: 4 September 2018

CaseChat Overview and Summary

This matter concerned an application for merits review by Ms Liu of a decision made by Comcare. The dispute centred on whether Ms Liu suffered a psychological ailment as a result of reasonable administrative action taken in a reasonable manner in respect of her employment, which would preclude her from receiving compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The Administrative Appeals Tribunal (AAT) was required to determine this question.

The legal issues before the Tribunal were whether the performance appraisal and management process undertaken between February and April 2014 constituted reasonable administrative action taken in a reasonable manner. Specifically, the Tribunal had to consider if this process was the cause of Ms Liu's psychological ailment and, if so, whether it was an event without which her ailment would not have occurred, thereby engaging the exclusionary provisions of section 5A of the SRC Act.

The Tribunal reasoned that Ms Liu had been generally content in her role prior to February 2014, with her performance being satisfactory, although a previous rating indicated some concerns. The administrative actions in question arose from the arrival of a new supervisor and the crystallisation of a PDS expectation that Ms Liu would lead the preparation of a disciplinary aspect of a project. The Tribunal found that this responsibility was consistent with her duty statement and that Ms Liu's belief that the duty statement should align with her abilities, rather than the reverse, was misplaced. The subsequent intensive interaction between Ms Liu and her supervisors regarding specific projects was viewed as an attempt to transition her to the foreshadowed level of responsibility, with supervisors offering support. The Tribunal concluded that the process of addressing Ms Liu's responsibilities, including the communication that performance management was appropriate due to difficulties in meeting her duty statement, was reasonable administrative action taken in a reasonable manner.

The Tribunal found that the employment-related events between February and April 2014 were the sole contributors to Ms Liu's ailment. As these events constituted reasonable administrative action taken in a reasonable manner, the Tribunal concluded that Ms Liu would not have suffered her ailment but for this action. Consequently, the reviewable decision of 15 September 2016 was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 2 November 2016, she applied to the Tribunal for merits review of the reviewable decision dated 15 September 2016.FACTUAL BACKGROUND At the hearing of this matter there was substantial common ground between the parties about the events which gave rise to Ms Liu’s psychological injury in April 2014. The Tribunal took live evidence only from Ms Liu herself and from two (former) departmental officers who had supervised her. The following account of the relevant events reflects, except where indicated, that common ground shared by the witnesses. In the period between 2007 and 2014 Ms Liu held positions as an APS4 and APS5 officer in the Department, and sometimes acted as an APS6. Like other employees, she was required to undertake performance assessment on a cycle coinciding with the financial year – the Performance Development Scheme (PDS). For the 2012/2013 year her PDS rating was Level 2 – Developing at Level. This is one level below Level 3 – Fully Effective. Ratings below Fully Effective generally give rise to internal scrutiny of an employee’s performance. At the beginning of 2014 she was an officer in the Office of Water Science (OWS) in the Department. She was in a section dealing with the provision of advice to a body called the Independent Environmental Scientific Committee (IESC); her section dealt specifically with the environmental impact of development applications in Queensland relating to coal seam gas and coal mining. When she first joined OWS in 2012 her role had been focused on research (but with some experience in providing scientific advice to the IESC), but by early 2014 the section she was then in was less involved in research and more involved in advice. Her supervisor at the beginning of 2014 was Ms Rachel Bowman. In February 2014 Ms Bowman completed a PDS assessment of Ms Liu in which she rated her Fully Effective. Ms Liu described this assessment as an end of cycle rating. The assessment included a description of Ms Liu’s duties, which included:Lead or contribute to the accurate and timely completion of Papers to successfully support the IESC Project advice role, including Supporting Information, draft Project Advice. [Emphasis added.]In assigning her a Fully Effective rating, Ms Bowman commented:Melissa has made good progress towards contributing to [Policy Advice]… Her next challenge for 6 months is to be able to take on a whole section e.g. [surface water]. 12 months – lead project. She will need support to help achieve these goals. [Emphasis added.] Soon afterwards Ms Anu Datta succeeded Ms Bowman as Ms Liu’s supervisor. Ms Liu said that at an early stage of the relationship with her Ms Datta expressed concern about Ms Liu’s communication, that is, her ability to be understood in English. Ms Liu told the Tribunal she had done a communication course to deal with this issue. Ms Datta gave evidence that Ms Bowman’s PDS assessment of February 2014 was not an end of cycle assessment but a mid cycle assessment. That part of the document containing Ms Bowman’s comments describes itself as PERFORMANCE AND CAPABILITY RATING – MID CYCLE.

Evidence

Evidence Before The Court

On 11 April 2014 Ms Liu requested Ms Beynon review her PDS. On 2 May 2014 Ms Beynon sent Ms Liu an email stating:I have also reviewed your PDS and I think it on a par in terms of content with others in the section – and it does include a focus on discipline (lead). I think one aspect that would benefit from being addressed further is in terms of the heading ‘working with people’.MEDICAL EVIDENCE Although no doctors appeared to give evidence, several medical reports were tendered: ·Medical certificate completed by Dr Stephanie Ajulo, General Practitioner, dated 18 May 2016, and a report by her dated 20 June 2016;·Report of Dr Catherine Oelrichs, Consultant Psychiatrist, dated 30 June 2016;·Report of Dr Robert Hampshire, Consultant Psychiatrist, 29 June 2017 (erroneously dated 2 February 2017); ·Report of Dr Antonella Ventura, Consultant Forensic Psychiatrist, dated 31 July 2017; and·Report of Dr Selwyn Smith, Consultant Psychiatrist, dated 22 January 2018. Dr Ajulo’s medical certificate noted that Ms Liu consulted with another doctor at the practice on 14 April 2014 for distress at receiving an email which informed her about a meeting to do with her performance. In her report dated 20 June 2016 she noted that on 14 April 2014 Ms Liu had reported experiencing stress at work. Her level of stress was recorded as 32/50. She reported that her sleep was broken and that she was feeling moody, irritable and had suffered palpitations. Dr Oelrichs examined Ms Liu on 23 June 2016. In her report she said that Ms Liu reported that she had been feeling psychologically unwell for about 2 years and diagnosed an adjustment anxiety and depressed mood. She considered the factors which contributed to this condition were present from April 2014. Dr Hampshire examined Ms Liu on 6 April 2017. He diagnosed Major Depressive Disorder with mixed but mainly melancholic features. He concluded that her depression began sometime around 2014, and that her condition is directly related to the workplace harassment and bullying from her supervisor, Ms Datta. Dr Ventura’s report of 31 July 2017 followed an examination of Ms Liu on 25 July 2017. Dr Ventura diagnosed major depressive disorder and considered that she started to develop a psychiatric condition around 11 April 2014 based on the information available. She opined that the performance management process and the loss of Ms Liu’s job in 2016 were the major contributing factors which caused her psychiatric condition. She also stated the events that arose from the performance management process and resulted in her termination contributed to her psychiatric condition fully. She added:In my view her condition persists partly as a result of loss of face which is particularly significant given her ethnicity as well as the home difficulties which are a consequence of her having lost her job. Dr Smith examined Ms Liu on 18 January 2018. In his subsequent report he diagnosed Major Depressive Disorder with heightened levels of anxiety. He opined that her adverse work related experiences... have been the substantial contributing factor to the development of her psychiatric disorder. He considered that the onset of her psychiatric condition occurred in approximately April 2014.LEGISLATION

Decision

Reasons for decision

There can be little difficulty, in the circumstances of this case, in reaching the conclusion that the test is satisfied. It is plain on the evidence, and was conceded by the parties, that the only matters which contributed to Ms Liu’s ailment were the employment-related events of February-April 2014. It is these events, and only these events, which could have significantly contributed to the onset of her ailment. Having found that these events consisted of acts by her employer which amounted to reasonable administrative action taken in a reasonable manner, it follows ineluctably that Ms Liu would not have suffered her injury but for the taking of that reasonable administrative action. It does not matter, on this view, if the events are regarded as a series of administrative actions rather than a single action, nor that her injury may have occurred earlier than 11 April 2014. On any construction the administrative action is an event without which she would not have suffered her ailment.CONCLUSION The reviewable decision of 15 September 2016 is affirmed.

Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal must determine whether the administrative actions taken in respect of Ms Liu’s employment prior to and including 11 April 2014, actions which caused her psychological ailment, were reasonable administrative actions taken in a reasonable manner. CONSIDERATION Ms Liu appears to have been fairly comfortable and happy in her role as a project officer in the Department in the period before February 2014. Her performance appears to have been satisfactory, although her rating of Level 2 – Developing at Level in 2012/13 may suggest that there were some concerns among her supervising officers with respect to her performance in this period. She evidently took some pride in being rated Level 3 – Fully Effective in her February 2014 PDS. The administrative action that was said to enliven the exclusionary provision in s 5A was the performance appraisal/management process to which Ms Liu was subjected between 7 February 2014 and 11 April 2014. This process began, in effect, with the arrival of Ms Datta as her immediate supervisor. At the meeting of 14 February 2014 between Ms Datta, Ms Beynon and Ms Liu, the expectation which had been flagged in her PDS – that she would lead the preparation of a disciplinary aspect of a project – was crystallised. It is clear that Ms Liu did not welcome or accept this development, just as it is clear her superiors believed the responsibility nonetheless accorded with her duty statement and was a reasonable expectation of an APS5. There can be no doubt that leading the preparation of a disciplinary aspect was part of her duty statement. The Tribunal does not accept her evidence that the reference to doing so in the PDS was merely a suggestion which she could disregard. Ms Liu appeared to believe that the duty statement had to align with her abilities, whereas the reverse was in fact the case, based on the evidence of Ms Datta and Ms Beynon. Against this background, the intensive interaction between Ms Datta and Ms Liu over the Red Hill and Teresa Coal projects in March and April 2014 can be seen as an attempt by her supervisors to transition Ms Liu to the level of responsibility foreshadowed in the 14 February meeting. The evidence suggests that her supervisors were aware of her dissatisfaction with this process, but were prepared to offer some support if she chose to engage with this new role. The divergence between the expectations of Ms Liu and of her supervisors came to a head with the events of 10/11 April. In the course of those events Ms Datta indicated to Ms Liu that performance management was appropriate given the difficulties she was encountering in meeting the terms of her duty statement. The conveying of that news was probably the event which most directly contributed to the onset of her mental illness. The process of addressing the nature and scope of Ms Liu’s responsibilities as an employee of the Department, a process which ran from February to April 2014, was clearly action taken in respect of her employment. The process centred on the clear requirement in her PDS to lead the preparation of a disciplinary aspect; against that contractual requirement, the evidence is consistent with shortcomings in her performance, giving rise to an administrative process to deal with those shortcomings. Action taken in such a context is plainly reasonable administrative action.