Modirzadeh and Comcare - [2004] AATA 914

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 914
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/15

GENERAL ADMINISTRATIVE DIVISION )

Re ALEX MODIRZADEH

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date27 August 2004
PlaceCanberra

Decision The decision under review is affirmed.
..............................................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION - injury - ailment - adjustment disorder – materially contributed to by employment – disease - failure to obtain a promotion - reasonable disciplinary action - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss4, 5, 7, 14
Workplace Relations Act 1996 s 170CM
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Re Rizkallah and Australian Postal Corporation (1991) 14 AAR 348
Re Wicks and Telstra Corporation [1997] AAT 12448
Re Inglis and Comcare (1997) 49 ALD 193
Re Arthur and Comcare [2004] AATA 241
Comcare v Mooi (1996) 69 FCR 439
Trewin v Comcare (1998) 84 FCR 171
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Weigand v Comcare Australia (2002) FCA 1465
Re Bennett and Comcare (1992) 17 AAR 18
REASONS FOR DECISION

August 2004 Mr S. Webb, Member

1.      By this application Mr Modirzadeh is seeking relief from a reviewable decision made by a Comcare Australia delegate on 20 September 2000 to affirm a primary determination dated 30 May 2000 to deny his claim for compensation in relation to “general anxiety stress”. Mr Modirzadeh’s compensation claim concerns alleged incidents in his employment by the Australian Capital Territory Electricity and Water Corporation Limited (“ACTEW”).
2.      The matter came on for hearing in Canberra on 19, 20 and 21 April 2004 and 23 and 24 June 2004. At the hearing Mr Modirzadeh was represented by Mr D. Richards, counsel. Comcare Australia was represented by Mr C. Clark, counsel. Mr Modirzadeh, Dr J. Saboisky, Dr W. Knox, Ms E. Cullen, Mr G. Parker, Mr C. Hodgson, Mr C. Larsen, and Ms T. Hutchison gave oral evidence at the hearing. Materials were tendered and labelled as exhibits during the hearing.
3.      Written submissions were tendered by both parties following conclusion of the hearing.
factual context
4.      The following material facts arise from the evidence.
5.      Mr Modirzadeh was born on 3 February 1945. He married in 1976 and migrated to Australia in January 1983. There are four children of the marriage.
6.      From 1985 to 1993 he was employed by the New South Wales Department of Community Services.
7.      Mr Modirzadeh commenced employment by ACTEW on 17 June 1993. He worked at the Senior Information Technology Officer C (“SITO C”) level.
8.      On or about 26 June 1996 Mr Modirzadeh purchased and moved into “a house and land package” at 39 Ivo Whitton Circuit in the Glen Eagles Estate, Kambah.
9.      In or about August 1998 Mr Modirzadeh and other Information Technology Officers were offered voluntary redundancies in consequence of ACTEW restructuring. He declined the offer. Mr Modirzadeh attempted to obtain a promotion.…

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 Modirzadeh and Comcare

Details

AGLC: Modirzadeh and Comcare [2004] AATA 914
Case: [2004] AATA 914
Decision Date: 27 August 2004

CaseChat Overview and Summary

The matter before the court involved the applicant, Ms. Modirzadeh, who sought compensation from Comcare for an adjustment disorder she claimed was caused by her employment. Ms. Modirzadeh alleged that her employment conditions, including her failure to be promoted, contributed to her ailment, and that certain disciplinary actions taken against her were unreasonable. Comcare opposed the claim, arguing that the applicant's disorder was not attributable to her employment and that the disciplinary actions were justified. The case was heard in the Federal Court of Australia.

The primary legal issues for the court to decide were whether the applicant's adjustment disorder was materially contributed to by her employment and whether the disciplinary actions taken against her were reasonable. The court needed to assess if there was a causal link between the employment conditions and the disorder and determine whether the disciplinary actions were proportionate and justified under the circumstances. The court also had to consider relevant legislative provisions and previous case law.

In its decision, the court affirmed the earlier decision that Ms. Modirzadeh's claim for compensation was not substantiated. The court found that the applicant's adjustment disorder was not materially contributed to by her employment. The court also concluded that the disciplinary actions taken against her were reasonable and proportionate to the circumstances. The court referred to several precedent cases and statutory provisions to support its reasoning. The applicant's appeal was dismissed, and the original decision was upheld.

The final orders of the court affirmed the decision under review, meaning that Ms. Modirzadeh's claim for compensation was dismissed, and no compensation was awarded. The disciplinary actions taken against her were upheld as reasonable.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		ALEX MODIRZADEH