Maletic and Comcare (Compensation) - [2016] AATA 210

Maletic and Comcare (Compensation) [2016] AATA 210 (05 April 2016)

Division

GENERAL DIVISION

File Number(s)

2014/6524

Re

Tammy Maletic

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President Bernard McCabe

Date 05 April 2016

Place Brisbane
The decision under review is affirmed.

..............................[Sgd]..........................................
Deputy President Bernard McCabe
Catchwords
COMPENSATION – aggravated psychiatric condition – interaction with superior – whether reasonable administrative action or operational action – whether interaction concerned “conditions in” which the employee worked – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14
Cases
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
REASONS FOR DECISION
Deputy President Bernard McCabe
05 April 2016

Tammy Maletic developed (or aggravated) a psychiatric condition as a consequence of an interaction with a superior at work on 2 June 2014. Ms Maletic says Comcare is liable to pay compensation for that injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Comcare denies liability. It relies on the exclusionary provision in s 5A of the Act which is available where the injury is the result of reasonable administrative action taken in … respect of an employee’s employment. The outcome of this case turns on whether the employer was engaged in reasonable administrative action when the officer interacted with Ms Maletic on 2 June 2014.
I am satisfied the employer behaved reasonably, fairly and sensitively when the officer initiated the interaction with Ms Maletic on 2 June 2014. I accept Ms Maletic’s behaviour was disruptive, and the manager in question understandably felt the need to provide direction. I am also satisfied the manager in question conducted herself appropriately and reasonably in the face of Ms Maletic’s difficult behaviour during the course of the short interaction. It follows I am satisfied it was reasonable for the employer to undertake the action, and that the action was carried out in a reasonable fashion. Comcare is therefore entitled to rely on the exclusionary provision provided I can be satisfied the manager’s behaviour is properly characterised as administrative action. But is it?
That question requires that I consider the often elusive distinction between administrative action and other forms of action which are often referred to as operational action. My decision turns on the wording of the exclusionary provision in s 5A. My interpretation of that section is informed in particular by the reasoning of the Full Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463.
I am satisfied the manager’s conduct is properly characterised as administrative action. I explain my reasons below.
What happened?
Ms Maletic has been employed by the Defence Housing Australia (the DHA) in Townsville for many years. She is a leasing officer. During the course of 2014, the DHA’s office was being refurbished. A manager developed a plan for moving and accommodating staff in the building while the renovation work went on. The applicant was…

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 Maletic and Comcare (Compensation)

Details

AGLC: Maletic and Comcare (Compensation) [2016] AATA 210
Case: [2016] AATA 210
Decision Date: 05 April 2016

CaseChat Overview and Summary

In the case of Maletic v Comcare, the primary dispute was over whether the direction given to the appellant to move from one desk to another constituted administrative action under the applicable legislative provisions. The matter was heard and determined in the Administrative Appeals Tribunal of Australia. The central issue was whether this administrative action, which involved an interaction with a superior, was connected to the "conditions in" which the employee worked, and thus, whether it was reasonable in its conception and execution.

The court had to decide if the direction to move desks was a reasonable administrative action and whether it fell under the conditions of employment or the conditions in which the employee worked. Additionally, the court needed to ascertain whether the interaction regarding the desk move was indeed administrative action under section 5A of the relevant legislation. The court's decision hinged on whether the action was reasonable in both conception and execution, which in turn would determine if Comcare could rely on the exclusionary provision.

The court concluded that the direction to move desks was concerned with the conditions in which the employee worked, rather than the terms or conditions of employment. This finding meant that the interaction regarding the desk move was indeed administrative action under section 5A. The court had previously determined that the action was both reasonable in conception and execution. Consequently, the court affirmed that Comcare was entitled to rely on the exclusionary provision, and the decision under review was upheld.

The final order of the court was that the decision to affirm the direction given to the appellant to move from one desk to another was correct, and Comcare's reliance on the exclusionary provision was justified. The court's affirmation of the decision under review meant that Comcare's position was upheld, and the appellant's claim was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The direction to move from one desk to another is concerned with the conditions in which the employee works (as opposed to the terms or conditions of employment). It follows the interaction pertaining to that issue was administrative action for the purposes of s 5A. Given I have already concluded the action was reasonable in conception and reasonable in execution, it follows Comcare is entitled to rely on the exclusionary provision.Conclusion The decision under review must be affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number(s)	2014/6524
Re	Tammy Maletic
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President Bernard McCabe
Date	05 April 2016
Place	Brisbane