Moradi and Comcare (Compensation) - [2022] AATA 3168

Moradi and Comcare (Compensation) [2022] AATA 3168 (28 September 2022)
Division:GENERAL DIVISION
File Numbers: 2018/4986, 2019/4964, 2019/5105
Re:Yasmin Moradi
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:R Cameron, Senior Member
Date:28 September 2022
Place:Melbourne

The reviewable decision the subject of each application for review is affirmed.
.....[sgd]...................................................................
R Cameron, Senior Member
Catchwords
COMPENSATION – three applications – issues for determination – whether condition suffered resulted from reasonable administrative action – accepted that claimed condition outside boundaries of normal mental functioning – accepted that claimed condition was contributed to by employment – whether condition suffered is permanent – if permanent, to what degree – deployment to Nauru – working as a translator – deployment terminated on 12 January 2018 – claimed condition found to be adjustment disorder, mixed anxiety and depressive reaction – found to be reasonable administrative action – decision affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Martinez (No. 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Drenth v Comcare [2012] FCAFC 86
Lee v Comcare [2012] AATA 867
REASONS FOR DECISION
R Cameron Senior Member
28 September 2022
INTRODUCTION

The applicant seeks a review of three decisions made by the respondent.
In application number 2018/4986 the applicant seeks a review of a decision made on 8 August 2018, which denied liability under section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) for “adjustment disorder, anxiety and depression”.
In application number 2019/4964 the applicant seeks a review of a decision also made on 8 August 2018, denying liability under section 14 of the Act for “psychiatric condition, adjustment disorder, post-traumatic stress disorder (“PTSD”), anxiety and major depressive disorder”.
In application number 2019/5105 the applicant seeks a review of a decision made on 1 August 2019, denying liability for lump sum compensation for impairment and non-economic loss under sections 24 and 27 of the Act.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
The respondent has made several concessions which are relevant to determining the issues that the Tribunal is required to consider.
It has conceded that the applicant’s psychological state was outside the boundaries of normal mental functioning and behaviour.[1]
[1] See paragraph 2.3 of the respondent's closing submissions.
The respondent has also conceded that the applicant’s psychological conditions, as diagnosed by Dr Firestone and Associate Professor Mendelson, were contributed to, to a significant degree, by the applicant’s employment with the Department of Home Affairs (“Department”).[2]
[2] See paragraph 2.5 of the respondent's closing submissions. Paragraph 5.1 of the submissions is also referred to where similar concessions are made.
The first issue remaining for the Tribunal to determine is whether the psychological conditions suffered by the applicant resulted from reasonable administrative action taken in a reasonable manner in respect of her employment and without which the injury, as defined by section 5A(1) of the Act, would not have been suffered.
The second issue is whether an impairment is permanent; and if so, what is the…

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 Moradi and Comcare (Compensation)

Details

AGLC: Moradi and Comcare (Compensation) [2022] AATA 3168
Case: [2022] AATA 3168
Decision Date: 28 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered three applications brought by Mr Moradi, Ms Moussavi, and Mr Rohani, concerning claims for compensation. The central dispute revolved around whether the conditions suffered by the applicant arose from reasonable administrative action taken in connection with their employment. The applicant had been deployed as a Persian interpreter to Nauru, and their deployment was terminated on 12 January 2018. The applicant claimed to have suffered an adjustment disorder with mixed anxiety and depressive reaction as a result of this termination.

The legal issues before the Tribunal were whether the applicant's claimed condition was contributed to by their employment, whether the condition was permanent, and if so, to what degree. Crucially, the Tribunal had to determine if the termination of the applicant's deployment constituted reasonable administrative action. This involved assessing whether the action was reasonable in its conception and execution, considering the terms of the applicant's contract and the operational needs of the Department.

The Tribunal found that the termination of the applicant's deployment on 12 January 2018 was reasonable administrative action. This conclusion was based on the contractual terms, specifically clause 6.3.6 of the Deed of Standing Offer, which allowed for the cancellation of deployments with notice, and clause 4.1.1, which subjected deployments to the Department's allocation policy and operational needs. The applicant was aware of these provisions, which were also reiterated in the "Interpreter deployment brief-Nauru." The Tribunal noted that the standard of reasonableness does not require perfection, and even if an action could have been handled differently or better, it does not render it unreasonable. Evidence was accepted that the number of interpreters required on Nauru fluctuated and diminished, supporting the Department's operational reasons for the early termination.

The Tribunal affirmed the decision that the condition suffered by the applicant was a result of reasonable administrative action. Consequently, the applications for compensation were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

These applications were heard at the same time as applications that were brought by Granaz Moussavi[3] and Nikram Rohani.[4] [3] Application number 2019/2210 & 2019/8215.[4] Application number 2018/7169 & 2019/7431.RELEVANT FACTS The applicant had been employed as a Level 3, Professional Persian interpreter by the Department in a division known as the Translating Interpreting Services (“TIS”). Such employment was on a contract basis and commenced on 21 August 2012. Since that time the applicant has completed a number of deployments to various immigration detention facilities including Christmas Island, Darwin and Nauru. These deployments would typically run from periods of between four weeks and up to two months. She had been deployed to Nauru on no less than five separate occasions. For each deployment the applicant was employed under a Deed of Standing Offer (“Deed”).[5][5] A copy of the Deed of Standing Offer was attachment NM-1 to the statement of Nikki Meyers dated 18 March 2020. The Deed contained the following clauses:“The Department may, from time to time, request the Service Provider to provide the Services to a Client. Any request for Services by the Department is subject to the Department’s policies including the Allocation Policy, the Department’s operational needs and any directions issued by the Department and is subject to change at any time.” (Clause 4.1.1)“Where a Service Provider is undertaking an On-site Interpreting Assignment or On-site IMA Interpreting Assignment which is more than one day in duration, and the Assignment has commenced, the Department may provide the Service Provider notice of cancellation where the Service Providers Assignment is to conclude before the originally scheduled conclusion time. In such cases, the Department may provide notice to the Service Provider at any time advising of the revised time of conclusion.” (Clause 6.3.6) Prior to the deployment concerned with this application, the applicant completed a resilience testing program which included undergoing a telephone interview with a psychologist. The program also included an online resilience assessment test and a report which included a self-care plan. Once deployment was approved, all interpreters including the applicant were provided with a TIS “Interpreter deployment brief-Nauru” which outlined the nature of the conditions at the place of deployment and in this case on the Island of Nauru.[6] Relevantly, in the Interpreter deployment brief for Nauru, it recorded the following:“Interpreters are required to be flexible as business needs change frequently. Due to operational requirements and often at very short notice:your booking dates may be altered; andyour departure date cannot be guaranteed.”[6] A copy of the Interpreter deployment brief-Nauru is attachment NM-4 to the statement of Meyers dated 18 March 2020. The applicant in her evidence admitted that she had read the contents of the brief prior to commencing her deployment.

Evidence

Evidence Before The Court

The applicant submitted a Workers’ Compensation Claim form on 18 February 2018. In response to the question “When did you first notice your symptoms/injury?” She replied “12/01/2018 4.10pm.” In that form the claimed condition was for “Post-traumatic stress disorder, adjustment disorder, anxiety, depression”.[13]THE MEDICAL EVIDENCE[13] Commencing at page 695 of the Joint Tribunal book.Dr Malekzadeh The applicant upon her return to Australia first consulted her GP Dr Malekzadeh on 23 January 2018. Reports dated 5 April 2018 and 16 April 2019 were in evidence from him.[14] He diagnosed the applicant as suffering with an adjustment disorder, anxiety/depression and PTSD features. He prescribed medication and referred her to both Dr Camilleri and a psychologist clinic, Kaye Frankcom & Associates.[14] Dr Malekzadeh did not give evidence before the Tribunal. In response to a question in his assessment as to when the applicant’s condition started, he responded on 12 January 2018 when the applicant had been told to go back home.[15] He stated that her condition started then and got worse afterwards. He recorded that she felt shocked upon being told to go home. Dr Malekzadeh also opined that the unexpected dismissal, whilst she had four more weeks to work, created a psychological shock to her.[15] Page 521 of the Joint Tribunal Book. Dr Malekzadeh also observed that the applicant had been suffering from insomnia, loss of appetite, anxiety, nightmares about her dismissal, flashbacks, loss of memory and forgetfulness, tearfulness and crying, very low motivation, difficulty making decisions, feeling hopeless, helpless and worthless.Dr Camilleri There were several reports in evidence of Dr Camilleri, a Consultant Psychiatrist.[16] The applicant first consulted him on 5 February 2018. He diagnosed the applicant as suffering from PTSD and major depressive disorder. He concluded the incident that caused the claimed condition was the abrupt and, in the applicant’s mind, unjustified dismissal of her and other employees without adequate explanation. She was quite traumatised by what happened. He opined that the level of contribution for this incident to the claimed condition is 100%. He further stated there are no non-employment incidents or causes for this condition.[16] They were 6 February 2018, 22 March 2018, 6 August 2018 and 17 April 2019. He did not give evidence at the hearing of the application.Dr Firestone There was a report in evidence from Dr Firestone, another Consultant Psychiatrist, dated 13 April 2018.[17] Dr Firestone had examined the applicant on 5 April 2018.[18] He diagnosed an adjustment disorder with mixed anxiety and depressed mood DSM-5 category 309.28.[19] He considered that in the absence of a threat to her life, or of grievous bodily harm, her condition could not be diagnosed as PTSD. Dr Firestone recorded that in his impression, the applicant presented genuinely. In response to a question in his assessment about events that were individually significant in the development or aggravation of the applicant’s claimed condition, he stated that being advised that she would return from Nauru earlier than expected on 12 January 2018 initiated the condition.[20] He further expressed the opinion that nothing suggests that she would have developed this condition had her employment been continued on Nauru. He was not aware of any other factors or issues affecting her condition.[17] Commencing at page 493 of the Joint Tribunal Book.[18] Dr Firestone did not give evidence at the hearing of the application.[19] Page 478 and 497 of the Joint Tribunal Book.[20] Page 500 of the Joint Tribunal Book.Dr Saboisky

Decision

Reasons for decision

The Tribunal finds that the meeting on 12 January 2018 was action done in connection with the applicant’s failure to retain a benefit in connection with her employment for the purposes of section 5A(2)(f) of the Act.Was there a reasonable basis for the decision in any event? The question then becomes whether the administrative action was reasonable. This requires an evaluation of whether the action was reasonable in conception and reasonable in execution. The Tribunal is satisfied there was a reasonable basis for the decision to terminate the applicant’s deployment on 12 January 2018 in any event. It should not be lost sight of that under the provisions of clause 6.3.6 of the Deed, the Department could provide notice of cancellation where deployment was to conclude before the originally scheduled conclusion time. The applicant was aware of this fact. As noted earlier, she was bound by the terms of the Deed. It was reiterated in the “Interpreter deployment brief-Nauru” which the applicant was aware of. This is in addition to the provisions of clause 4.1.1 of the Deed which made a deployment subject to the Department’s allocation policy and its operational needs which were subject to change at any time. Once again, the applicant was bound by these terms. It should be observed that the standard of reasonableness is not a standard of perfection. It is possible that there may be more than one way of doing things reasonably. For instance, the Federal Court said in Comcare v Martinez (No. 2):[33]…It could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.[33] [2013] FCA 439 at [81]. Even though it may be apparent that the action concerned “could have been handled differently and, probably, better”, it does not mean the action taken was unreasonable as the requirement is that “administrative actions must be undertaken in a reasonable manner, not in a perfect manner”.[34][34] Lee v Comcare [2012] AATA 867. It was not suggested to either Meyers or Richardson, when they were in the witness box, that the early termination of the applicant’s deployment as occurred in the meeting attended by her on 12 January 2018 was unreasonable and not taken in a reasonable manner. Jackson, who was present on the island of Narau during the time relevant to this application, whose evidence the Tribunal accepts for the reasons outlined earlier, gave evidence that the Farsi Arabic interpreters had more time on their hands. Meyers gave evidence that frequent reviews of the requirements for interpreters on the Island of Nauru were undertaken. She also gave evidence that the number of interpreters required fluctuated but ultimately diminished until RPC-1 closed in March 2019. This evidence was not challenged when she was in the witness box. It is accepted by the Tribunal. The Tribunal found Meyers to be a credible witness.

Ratio Decidendi

Legal Principle Established

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