Mador and Comcare (Compensation) - [2022] AATA 892

Mador and Comcare (Compensation) [2022] AATA 892 (27 April 2022)
Division:GENERAL DIVISION
File Number: 2019/5822
Re:Ana Mador
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Dr I Alexander, Senior Member
Date:27 April 2022
Place:Sydney

The Tribunal finds that:
The decisions under review are affirmed.
.....................................[sgd]...................................
Dr I Alexander, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION –– anxiety/stress disorder – whether Comcare is liable to pay compensation for psychological injury – whether Applicant suffered a psychological ailment for the purposes of section 5B of the SRC Act – whether Applicant’s ailment was contributed to, to a significant degree by her employment with ATO, therefore, a disease for the purposes of section 5B of the SRC Act – whether Applicant suffered disease as a result of reasonable administrative action, taken in a reasonable manner in respect of her employment with the ATO and, therefore, not compensable under the SRC Act – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21;19 FCR 463
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martinez (No 2) [2013] FCA 439
Nguyen and Comcare (Compensation) [2018] AATA 1623
REASONS FOR DECISION
Dr I Alexander, Senior Member
27 April 2022

Ms Mador is a permanent part-time employee of the Australian Tax Office (ATO). She has worked in the Superannuation Business Line in various teams since she commenced employment in August 2000 as an administrative officer at the APS4 level.
At the relevant time, Ms Mador was an EL1 Law interpretation Officer in the Interpretive Advice (IA) area within the Technical Leadership and Advice branch where she had worked since August 2012.
In May 2018, Lekie Johnstone (LJ)[1] had a brief conversation with Ms Mador and other employees to test their interest in possible redundancies that may be available in the future.
[1] EL2 – Director of Interpretive Advice (IA) in the Technical Leadership and Advice branch of the ATO.
Between 10 June 2018 and 10 September 2018, Ms Mador was overseas on leave.
On 24 September 2018, in a meeting with LJ, DBZQ,[2] and Fiona Elliot (FE)[3] to discuss the new team structure to be implemented in November 2018, Ms Mador and Mr David Lavender (DL),[4] were informed that the STO unit is to be disbanded and that the three members of the Sydney STO team will be transferred to the Sydney IA team.[5] During the meeting they were also informed that they would be reporting to DBZQ as the team manager.
[2] EL1- AI Team manager.
[3] EL1 – STO team manager.
[4] Sydney Senior Technical Officer (STO) team: A. Mador - EL1; R.; D. Lavender (DL)- EL1; Tesoriero (RT)-APS6.
[5] Other team members of the STO unit were based in Tasmania and Queensland.
On 27 September 2018, in a meeting with LJ and FE, Ms Mador raised concerns about reporting to DBZQ because of an…

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 Mador and Comcare (Compensation)

Details

AGLC: Mador and Comcare (Compensation) [2022] AATA 892
Case: [2022] AATA 892
Decision Date: 27 April 2022

CaseChat Overview and Summary

This matter concerned an appeal by Ms Mador against a decision by Comcare to deny her claim for compensation for a psychological ailment. Ms Mador alleged that she had suffered a psychological injury due to workplace bullying and pressure to accept redundancy from her employer, the Australian Taxation Office (ATO). Comcare's decision was reviewed by Dr I Alexander, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Ms Mador suffered a psychological ailment that constituted a "disease" for the purposes of section 5B of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and whether this disease was contributed to, to a significant degree, by her employment. Crucially, the Tribunal also had to determine if Ms Mador's ailment resulted from reasonable administrative action taken in a reasonable manner in respect of her employment, which would render it non-compensable under the Act.

The Tribunal considered Ms Mador's evidence detailing alleged bullying, pressure to transfer or accept redundancy, and false allegations made against her. It also examined her GP records and a request for reconsideration. The Tribunal applied the principles of reasonableness as discussed in *Bropho v Human Rights and Equal Opportunity Commission* and *Comcare v Martinez (No 2)*, which require an objective assessment of whether an action bears a rational relationship to the activity and is not disproportionate. The Tribunal was satisfied that the "Compass meeting" on 18 February 2019, where concerns about Ms Mador's behaviour were raised, constituted reasonable administrative action taken in a reasonable manner.

The Tribunal affirmed the decision under review, finding that Ms Mador's ailment was a result of reasonable administrative action taken in a reasonable manner in respect of her employment, and therefore, it was not compensable under the *Safety, Rehabilitation and Compensation Act 1988*.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If so, the third issue is, whether Ms Mador suffered her ‘disease’ as a result of reasonable administrative action, taken in a reasonable manner in respect of her employment with the ATO and, therefore, not compensable under the SRC Act?Ms Mador’s Evidence The claim form In the claim form lodged on 13 March 2019, Ms Mador stated that she had first noticed symptoms on 4 December 2018 at 8:00 am and described how she was injured,[11] inter alia, as follows, with emphasis added:I have been subject to workplace bullying by my manager and their manager (Director). This has involved ongoing pressure to leave the team I am working in either by transferring to another area of the ATO, or to accept a redundancy on the grounds that I am not adapting to the changing work environment. This type of the redundancy was first offered to me in May 2018. I was told to keep the offer confidential and not discuss it with anyone. I declined the offer because I did not believe that it applies in my circumstances. I was then asked if I wanted to know if voluntary redundancies became available in future, I said ‘yes’… Since then, there were a number of discussions where the Director stated that she had to get ‘better value’ from Sydney EL1s … and she needed to make changes. Changes were made whereby in addition to the work we were doing before ... we had to provide advice/manage complex cases and deal with high profile clients directly. Before changes were made, and on several occasions since, it was suggested to us that we should think about whether we are ‘engaged’; … whether we want to go on the mobility register, and that we should think ‘our options’ [sic]. The last time we had a discussion about my role and whether or not I was adapting to the new work structure (18 February 2019), I was asked if I would be interested in a redundancy and when I said ‘no’ I was told by my manager that in future I may not have my overseas leave approved and false allegations were made with regard to my behaviour in the workplace, namely that I did not ‘engage’ with all members of the team. I did not record my times in the TMS accurately, I had long personal conversations in the workplace, and I had made regular, long personal telephone calls while at work. Also, the Director stated that sometimes a manager may have to do something which is not ‘technically legal’ and wanted to know whether I would support my manager at in these circumstances [sic].All of this has caused me severe anxiety and I no longer feel safe at work because I do not know what is going to happen next. I feel that I am watched all the time with the intention of finding fault and making me uncomfortable/upset so that it may be used to exert further pressure to get me to leave/accept redundancy that I otherwise would not accept.[11] That is, 17 working days after being transferred to the Sydney IA team.Request for reconsideration In her request for reconsideration, dated 4 June 2019, Ms Mador stated, inter alia, as follows:It cannot be said that but for the administrative action described in paragraph 16 of the Determination, I would not have developed my condition. I first experienced symptoms of anxiety/stress in the workplace in April 2015 after I became aware of [DBZQ]’s complaint to Ms T. This had increased in November 2017 when [DBZQ] replaced Ms T as IA’s team manager and yet again when I was advised that I would be transferred into the IA team. [DBZQ]’s behaviour towards me from that time onwards, and other work-related events following the discussions on 18 February 2019, had a significant effect on me. …[12] [12] On 9 January 2015, Dr Wong, Ms Mador’s GP recorded ‘feeling anxious gets palpitations. Between 16 January 2015 and 24 December 2015 Dr Wong records five brief consultations with no reference to ‘anxiety or stress’. Between 27 September 2017 and 5 June 2018 there are no recorded consultations with Dr Wong. Written statements

Decision

Reasons for decision

Counsel addressed the fact that Ms Mador’s counsel, referred to an ATO policy document and submitted that the ATO accepts that a support person may be present or may be required. Counsel pointed that the document actually states that:You may request to have an employee representative assist or represent you for any individual workplace matter arising under the enterprise agreement’. Counsel added that this is an ‘option that is open to an employee to exercise’ and there is no obligation on a manager to remind an employee of this option before a Compass meeting.Conclusion On my reading of the available evidence and, taking into consideration, the concessions made by counsel on Ms Mador’s behalf, I am satisfied that the Compass meeting on 18 February 2019, was reasonable administrative action in respect of Ms Mador’s employment, and that, during the meeting, it was reasonable for DBZQ to raise his concerns about her behaviour in the workplace. Ms Mador submits that the ‘administrative action’ was not taken in a reasonable manner. This raises a question, as to the meaning of ‘reasonable’ in the context of administrative action. In Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at 79, French J stated as follows:There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done ‘reasonably’… if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court (emphasis added). In Comcare v Martinez (No 2), Robertson J stated as follows:[63][63] [2013] FCA 439.82 In my view, since context is a large part of statutory construction, it is not appropriate to start from a context so remote from the SRC Act, particularly given the international law background to s 18D. I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment (emphasis added).83 Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.

Ratio Decidendi

Legal Principle Established

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