Marilyn Dango and Comcare

Case [2013] AATA 597

[2013] AATA 597

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3438

Re

Marilyn Dango

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Date 23 August 2013 
Place Melbourne

The decision of Comcare, made 20 June 2012, denying liability to compensate Mrs Dango in respect of the condition of depression which was contributed to by her employment by the Department of Immigration and Citizenship, is affirmed.

.........................[sgd]...............................................

Deputy President J W Constance

CATCHWORDS

COMPENSATION – depression – whether employment contributed to a significant degree – whether reasonable administrative action taken in a reasonable manner – decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14

CASES

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Wang and Comcare [2012] AATA 242

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

  1. Mrs Dango is employed by the Department of Immigration and Citizenship.

  2. During 2011 Mrs Dango suffered from a psychological condition to which her employment contributed to a significant degree.  She lodged a claim with Comcare seeking compensation for this condition.  Such a claim may be made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

  3. Comcare has denied liability to pay compensation to Mrs Dango on the basis that her condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.  Under the Act compensation is not payable in these circumstances.

  4. Mrs Dango has applied to this Tribunal to review Comcare’s decision.  For the reasons which follow the decision will be affirmed.

    EVIDENCE AND FINDINGS OF FACT

  5. Unless stated otherwise the following findings of fact are based on the evidence of Mrs Dango.  I am satisfied of the facts found on the balance of probabilities.

  6. In 2009 Mrs Dango commenced employment in the role of Finance Officer in the Settlement and Multicultural Affairs Branch of the Department of Immigration and Citizenship. Her position was classified as APS4.  She was the only Finance Officer in the Victorian office of the Branch.

  7. Mrs Dango enjoyed her role and took on additional tasks from time to time at the request of her employer.  Some of the additional tasks included administrative work for the Detention Review Management team. From July 2010 onwards these additional tasks engaged Mrs Dango for about one half of her time on a daily basis. 

  8. In October 2010 Ms del Rio, Mrs Dango’s supervisor, conducted Mrs Dango's mid-term appraisal.  This was part of the Department’s normal process for reviewing the performance of staff.  During this process Mrs Dango requested that she be considered for higher duties allowance to compensate her for the extra work she was doing.  She repeated this request during an appraisal process in February 2011.  Mrs Dango was not granted the allowance she sought.

  9. On 30 March 2011 Mrs Dango received an email from her Manager, Ms El-Atrache, in the following terms:

    I had a chat with Anna yesterday to update her on our recent discussions regarding the Finance…

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Details
AGLC
Marilyn Dango and Comcare [2013] AATA 597
Case
[2013] AATA 597
Decision Date

CaseChat Overview and Summary

In the matter of Marilyn Dango and Comcare, the decision addresses a claim by Mrs Dango against Comcare regarding her employment conditions and subsequent mental health condition. Mrs Dango, a Finance Officer in the Settlement and Multicultural Affairs Branch of the Department of Immigration and Citizenship, had her position altered in various ways, including an increase in her workload, a refusal to grant her a higher duties allowance, and a transfer out of her original position. These changes led to her developing depression, which she attributes to work stress. The court was tasked with determining whether her depression was caused by reasonable administrative actions taken in relation to her employment.

The key issues for the court to resolve were whether the disease Mrs Dango suffered was caused by reasonable administrative action, if such actions were taken in a reasonable manner, if they were taken in respect of her employment, and if they contributed to her condition to a significant degree. The court considered the evidence of Mrs Dango and her medical practitioners, who all agreed that she suffered from depression. The court found that each of the administrative actions identified by Comcare occurred before Mrs Dango's depression was first treated, thereby satisfying the causation requirement.

The court concluded that the refusal to grant Mrs Dango a higher duties allowance, her transfer out of the Settlement and Multicultural Affairs Branch, and the failure to refer her to the Australian Public Service Commission for redeployment were all reasonable administrative actions. These actions were taken in connection with Mrs Dango's employment and were deemed reasonable in the context of the circumstances at the time. The court further found that these actions did not contribute to her depression to a significant degree, affirming Comcare's decision to deny her claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mrs Dango has applied to this Tribunal to review Comcare’s decision. For the reasons which follow the decision will be affirmed.EVIDENCE AND FINDINGS OF FACT Unless stated otherwise the following findings of fact are based on the evidence of Mrs Dango. I am satisfied of the facts found on the balance of probabilities. In 2009 Mrs Dango commenced employment in the role of Finance Officer in the Settlement and Multicultural Affairs Branch of the Department of Immigration and Citizenship. Her position was classified as APS4. She was the only Finance Officer in the Victorian office of the Branch. Mrs Dango enjoyed her role and took on additional tasks from time to time at the request of her employer. Some of the additional tasks included administrative work for the Detention Review Management team. From July 2010 onwards these additional tasks engaged Mrs Dango for about one half of her time on a daily basis. In October 2010 Ms del Rio, Mrs Dango’s supervisor, conducted Mrs Dango's mid-term appraisal. This was part of the Department’s normal process for reviewing the performance of staff. During this process Mrs Dango requested that she be considered for higher duties allowance to compensate her for the extra work she was doing. She repeated this request during an appraisal process in February 2011. Mrs Dango was not granted the allowance she sought. On 30 March 2011 Mrs Dango received an email from her Manager, Ms El-Atrache, in the following terms:I had a chat with Anna yesterday to update her on our recent discussions regarding the Finance role. The position description will be updated to reflect the removal of DRM work and inclusion of CCS invoices.Anna advises that Paula [Ms del Rio] and I need to know, step by step, the procedures you perform for IHSS, SGP and CCS finances. Paula has completed the e-learning modules, but now we need to see it in practice.I suggest that we use the session on Friday as the beginning of this process. You have suggested that we start with goods receipting. We can then work out a schedule for the other tasks.[1][1] Exhibit R1 p.119. On receiving this email Mrs Dango became increasingly concerned that Ms del Rio and Ms El-Atrache were planning for Ms del Rio to take over her work. Mrs Dango had formed the opinion that they had become less communicative with her during the preceding three months and that at times Ms del Rio had taken away work which she (Mrs Dango) had intended to do. Later on 30 March 2011 Ms El-Atrache emailed Mrs Dango as follows:This is not intended to cause you to feel alarmed. I need to know what you do so that I can manage the team’s workload while you are away on leave, or if someone asks me questions about finances etc in your absence. As an example, when I first joined the team I sat with Hannah so she could show me exactly what she does, step by step so that when she went overseas I was able to cover her work. I did the same with Donna.If there is a spike in our workload I need to know what capacity each person in our team has to share in the work.I feel I have a handle on the rest of the team’s work, now I need to make sure I am reasonably confident with your side of the pie. I hope this clarifies.[2][2] Exhibit R1 p.118.

Decision

Reasons for decision

Mrs Dango was also treated by Dr Murphy. His report dated 13 November 2012 [19] refers to the effect of the refusal of Mrs Dango's request for payment for higher duties, her transfer to another position and her request for referral to the Australian Public Service Commission. He stated that:She had identified strongly with the position of herself being a finance officer. She was greatly shocked and upset by the changes.…On 14/3/2012, I made the diagnosis of Major Depressive Disorder. Presuming what Mrs. Dango had told me was true about the changes and circumstances at her work place, I formed the view that her work place has had a significant and causative role in the aetiology of her psychiatric condition.[19] Exhibit R5Conclusion On the basis of the evidence of Mrs Dango and the medical practitioners to which I have referred, I am satisfied that Mrs Dango's depression was suffered, at least in part, as a result of each of the three instances of administrative action relied upon by Comcare. I am satisfied also that each of the instances of administrative action was reasonable. My reasons for this conclusion follow. Mrs Dango made a request for recognition of her efforts in the position held by her. Her employer responded appropriately by assessing her position in the manner normally undertaken in the Department. Mrs Dango was informed of the outcome of this assessment and provided with the further information she sought in relation to the assessment. Further I find that the action taken in relation to Mrs Dango's request was reasonable action in connection with her failure to obtain a reclassification and a benefit and is therefore classed as “reasonable administrative action” in accordance with subsection 5A(2). I am satisfied that the action to transfer Mrs Dango out of the Settlement and Multicultural Affairs Branch was reasonable in view of the stated need for a restructure by reason of budgetary requirements. Mrs Dango is of the opinion that this was not the actual reason for her transfer. However her evidence was based on no more than her suspicion and I am satisfied that the action taken was taken for the reason stated by her employer. On the basis of the findings I have made, I am satisfied that at all times Mrs Dango was not excess to the requirements of the Department and that she was not eligible to be referred to the Australian Public Service Commission. Mrs Dango was tendered this advice on several occasions.Issue 3: Was the administrative action “taken in a reasonable manner”? On the evidence before me I am satisfied that the manner in which the refusal to upgrade Mrs Dango's position was carried out, was reasonable. For the reasons I have set out in considering the preceding issue, I am satisfied that an appropriate manner of dealing with Mrs Dango's request was undertaken and that she was dealt with fairly. I accept Mrs Dango's evidence that she may have misunderstood the assessment process and I am satisfied that it is likely that there was some misunderstanding on her part as to exactly what was being assessed. However I am satisfied that there was nothing in the manner in which her employer carried out this administrative action which contributed to her misunderstanding.

Ratio Decidendi

Legal Principle Established

The following issues arise for determination:(1)What is the nature of the disease suffered by Mrs Dango?(2)Was the disease suffered as a result of “reasonable administrative action”?(3)If so, was the administrative action “taken in a reasonable manner”?(4)If so, was the administrative action taken “in respect of [Mrs Dango's] employment?(5)If so, did the administrative action contribute to Mrs Dango's condition to a “significant degree”?CONSIDERATION OF THE ISSUESIssue 1: What is the nature of the disease suffered by Mrs Dango? In his report dated 13 December 2011,[13] Dr Arulanantham stated that he was Mrs Dango's treating doctor and that he had seen her on two occasions. In the opinion of Dr Arulanantham, Mrs Dango presented with symptoms of depression which were directly related to work stress.[13] Exhibit R1 p.131. Dr Bangoy supports the diagnosis of depression[14], although he also diagnosed Mrs Dango as suffering from Post Traumatic Stress Disorder. Ms Singh, a Mental Health Clinician/Nurse to whom Mrs Dango was referred by Dr Bangoy, reported that Mrs Dango presented suffering from depression and anxiety.[15][14] Undated report, exhibit R1 p.59.[15] Report dated 30 November 2011, exhibit R1 p.60. On the basis of the above evidence I am satisfied that the proper description of the disease suffered by Mrs Dango is depression. All of Mrs Dango's treating health professionals agree on this diagnosis. Comcare does not dispute this diagnosis.Issue 2: Was the disease suffered as a result of “reasonable administrative action”?The incidents relied upon by Comcare Comcare has identified the following incidents as the administrative actions which it claims come within the exclusionary provision of the definition of “injury” in section 5A:(1)the refusal of Mrs Dango's request for an upgrade of her position;(2)the transfer of Mrs Dango out of her APS4 position in the Settlement and Multicultural Affairs Branch;(3)the failure of the Department to refer Mrs Dango to the Australian Public Service Commission for inclusion of her details in the redeployment register.As it is not in dispute that Mrs Dango's employment has contributed to her condition to a significant degree I need only consider the effect of these incidents.The administrative action relied upon must have occurred before Mrs Dango suffered the disease In considering whether particular administrative action contributed to a disease it is necessary to determine when Mrs Dango first suffered the disease. It cannot be said that the disease resulted from administrative action which occurred after that time. In accordance with subsection 7(4), if I find that Mrs Dango suffered an injury, the date of the injury would be 26 October 2011, being the date on which she first sought medical treatment for the “disease”. This is not in dispute. I have found that each of the incidents relied upon by Comcare occurred before 26 October 2011.Causation When she gave evidence Mrs Dango identified each of these three incidents as being upsetting to her. She also referred to them in her letter to Comcare dated 9 December 2011.[16][16] Exhibit R1, pp.85-89.Report of Dr Bangoy, General Practitioner