Marshall and Comcare (Compensation) - [2024] AATA 976

Marshall and Comcare (Compensation) [2024] AATA 976 (28 March 2024)
DecisionNumber: 2020/1819, 2023/3568
Division:General Division
File Number(s):2020/1819, 2023/3568
Re:Adam Marshall
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date:28 March 2024
Place:Melbourne

The decisions under review are affirmed.
………………………………………
Senior Member Damien O’Donovan
Catchwords
WORKER’S COMPENSATION – claims for psychological injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – adjustment disorders precipitated by events in the workplace – perception of bullying and harassment – whether injury/aggravation as a result of reasonable administrative action – failure to obtain a benefit – inappropriate conduct on part of applicant – whether administrative action taken in a reasonable manner – decisions under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A
Public Service Act1999 (Cth), s 25
Work Health and Safety Act 2011 (Cth)
Cases
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Comcare v Stewart [2019] FCA 365
Comcare v Martin (2016) 258 CLR 467
Long v Comcare [2012] FCAFC 21
Secondary Materials
Bureau of Meteorology, ‘Guidelines for privately initiated shift swaps’ (20 June 2006)
REASONS FOR DECISION
Senior Member O'Donovan

The applicant is an employee of the Bureau of Meteorology (BOM). He is seeking compensation in relation to two adjustment disorders, which he first noticed symptoms of on 7 October 2018 and 4 March 2019. Comcare has denied both claims.
There is no dispute that the applicant was suffering from an adjustment disorder in late 2018 and for some or all of 2019 and that his condition was contributed to, to a significant degree, by his employment with the BOM. The respondent does however contend that the applicant’s conditions fail to meet the statutory definition of a ‘injury’ because the adjustment disorders were suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.[1] If the respondent’s submission is accepted, the applicant is not entitled to compensation in relation to his conditions.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’), s 5A.
The applicant has put his case on the basis that he suffered an adjustment disorder in October 2018 as a result of issues surrounding a refusal by his supervisor to approve a shift swap which the applicant sought approval for in September 2018. He contends that at some point that adjustment disorder resolved and then incidents relating to communications with his supervisor in and around March, April and May 2019 caused him to suffer a second and more durable adjustment disorder, which has rendered him unfit for work ever since.
It is difficult to determine whether this is the most medically accurate way of analysing the applicant’s mental state in the period from October 2018 to May 2019, but at the very least it can be accepted that there are two distinct conditions – the first being an adjustment disorder which was suffered around October 2018 and a second which developed in March and April…

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 Marshall and Comcare (Compensation)

Details

AGLC: Marshall and Comcare (Compensation) [2024] AATA 976
Case: [2024] AATA 976
Decision Date: 28 March 2024

CaseChat Overview and Summary

This matter concerned a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) by an applicant, Mr Marshall, against Comcare. The dispute centred on whether Mr Marshall's adjustment disorder, which he alleged was precipitated by workplace events, constituted a compensable injury. Specifically, the claim involved allegations of bullying and harassment, and the central question was whether the applicant's condition arose as a result of reasonable administrative action taken in respect of his employment.

The Tribunal was required to determine several key legal issues. Firstly, it needed to ascertain whether the applicant suffered from a new adjustment disorder or a significant aggravation of an existing one, and if this condition qualified as a "disease" under the *SRC Act*, meaning it was significantly contributed to by his employment. Secondly, the Tribunal had to consider whether certain administrative actions, namely a direction not to communicate with a particular colleague and a delay in disclosing a complaint made against the applicant, constituted "reasonable administrative action" taken in a "reasonable manner" as defined by the Act.

Senior Member O'Donovan reasoned that the applicant had indeed suffered from an adjustment disorder, or an aggravation of one, in April and May 2019, and that this condition was significantly contributed to by his employment. However, the Tribunal found that the specific administrative actions taken – the instruction to cease communication with Ms Watson and the delay in informing the applicant about a complaint against him – were reasonable. These actions were deemed reasonable in light of the applicant's prior inappropriate communication and the employer's objective to manage difficult workplace issues while the applicant was on leave. Consequently, the Tribunal concluded that the applicant's disease was not a compensable injury because it arose from reasonable administrative action taken in a reasonable manner.

As a result of these findings, the Tribunal affirmed the decision under review, meaning Mr Marshall's claim for compensation was not successful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

First, I set out the sources of evidence on which my decision is based. Second, I consider whether the non-approval of the shift swap in 2018 constituted RAA. Third, I consider what events around March and April 2019 precipitated the applicant’s disease. When these have been identified I determine whether the identified events constituted RAA. Evidence The documentary evidence before the Tribunal was taken in as a single joint tender bundle consisting of three volumes of documents running to 2669 pages. The documents fell into the following categories:(a)T-Documents, Exhibits R1-R3, pp 1-589(b)Applicant’s material, Exhibits A1-A6, pp 590-1740(c)Respondent’s material, Exhibits R4-R9, pp 1741-1998(d)Material produced under summons, Exhibits R10-R11, pp 1999-2669 The material was taken in on the basis that it was incumbent upon the parties to draw my attention to documents of significance that they wanted me to have regard to. The parties were advised that they should not expect that I would read all 2669 pages in the tender bundle. The Tribunal conducted a hearing over five days from 17 to 21 July 2023. The following statements and reports set out evidence from witnesses called by the parties:(a)Adam Marshall:(i)23 November 2020, TB 590(ii)4 May 2023, TB 600(iii)10 May 2023, TB 922(b)Zeeva Cohen:(iv)report dated 23 October 2019, TB 1451(v)report dated 24 January 2020, TB 1554(vi)report dated 27 April 2021, TB 1623(vii)report dated 12 March 2020, TB 1701(c)Samantha Thompson: statement dated 3 March 2023, TB 1754(d)Christine Ward: statement dated 8 March 2023, TB 1832(e)Kieron McBrien: statement dated 16 June 2023, TB 1985(f)Karina Vila, Report dated 20 December 2022, TB 1563 I also took into evidence the following summonsed material produced by the Bureau of Meteorology on 25 August 2023:(a)Email from Layla Watson, ‘RE: EOI for BNAP- 6 months’, dated 7 August 2018(b)Email from Layla Watson, ‘RE: Advertising approval - Technical Officer Brisbane Airport - Ref: 9046’, dated 28 May 2018(c)Email correspondence between multiple managers regarding Nicholas Giannakis’ transfer, ‘RE: Brisbane Airport Job’, dated between 11-17 May 2018(d)Email from Layla Watson advising staff of withdrawal of the TO2 recruitment process, ‘Ref: Technical Officer Brisbane Airport - Ref: 9046’ dated 5 June 2018(e)Email correspondence between Layla Watson and Nicholas Giannakis, ‘Re: Transfer to YBBN’ dated 11-12 June 2018(f)Email correspondence between Layla Watson and Lynda Cuffe, ‘RE: TO2 - BNE - Pos 9046’, dated 1 June 2018(g)Email correspondence between multiple managers, ‘RE: Technical Officer Brisbane Airport advertisement’, dated between 1 and 23 May 2018.(h)Email correspondence between Mark Dalmazzo and Layla Watson, ‘RE: Referee reports-Liam Carroll and Adam Marshall’, dated 11 May 2018(i)Email correspondence between Joanne Bugelli and Layla Watson, ‘RE: Notifications to external TO2 applicants’, dated 6 and 8 June 2018(j)Email correspondence between Nicholas Giannakis and Layla Watson, ‘Re: Niks transfer from Perth Airport to Brisbane Airport’, dated between 15 and 17 May 2018(k)Email correspondence between Layla Watson and Tim Tangney, ‘RE: Nick Giannakis - Transfer WA to Qld’, dated 10-11 September 2018(l)Email correspondence between Layla Watson and Michelle Mews, ‘RE: Movement notice-Nik Giannakis’, dated 10-11 July 2018

Decision

Reasons for decision

I am satisfied:(a)that the applicant suffered from a new adjustment disorder or a significant aggravation of an underlying adjustment disorder in April and May 2019;(b)The adjustment disorder meets the definition of disease in the SRC Act in that it is an ailment significantly contributed to by the applicant’s employment;(c)If the applicant had not been directed not communicate with Ms Watson and there had not been communications which delayed directly disclosing that the applicant had been the subject of a complaint, I am satisfied that he would not have suffered from that disease;(d)the direction not to communicate with Ms Watson and the decision to delay communicating that a complaint had been made about the applicant were administrative actions as that term is understood in the SRC Act;(e)Those actions were reasonable in the context of the longstanding inappropriate communication engaged in by the applicant and the desire on the part of the BOM to reduce or eliminate communications which raised difficult issues for the applicant while he was on leave. The relevant actions were taken in a reasonable manner;(f)As a consequence, the applicant’s disease is not a compensable injury because it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.Conclusion For the reasons outlined, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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