Nguyen and Comcare (Compensation) - [2018] AATA 1623

Nguyen and Comcare (Compensation) [2018] AATA 1623 (6 June 2018)
Division:GENERAL DIVISION
File Number: 2016/2377
Re:Nguyet (Mary) Nguyen
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Bernard J McCabe
Date:6 June 2018
Place:Canberra

The decision under review is affirmed.
..............................[sgd]......................................
Deputy President Bernard J McCabe
CATCHWORDS
COMPENSATION – section 14 SRC Act – whether reasonable administrative action – claimed bullying – claimed mismanagement – impact of performance review outcome on applicant – onset of condition – section 5A SRC Act exclusion applicable – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 5A(2), 5A(2)(a), 5A(2)(f), 5B, 14
CASES
Commonwealth Bank of Australia Ltd v Reeve [2012] FCAFC 21
REASONS FOR DECISION
Deputy President Bernard J McCabe
6 June 2018
INTRODUCTION

Mary Nguyen developed depression and stress while she worked. She says she was the victim of a pattern of bullying and mismanagement at the hands of her superiors in the workplace. She claims Comcare is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) as a result. Comcare accepts the applicant suffers from a disease within the meaning of s 5B of the SRC Act but has denied liability because it says the disease was suffered as a result of reasonable administrative action within the meaning of s 5A(2). Comcare denies the applicant was bullied or mismanaged as alleged. It points instead to the applicant’s unhappiness at the outcome of a performance review and a decision to downgrade her engineering authority.
While I am critical of aspects of the employer’s conduct towards the applicant, I am satisfied the actions which brought on the applicant’s health conditions are properly attributable to reasonable administrative action. That means Comcare is not liable for the applicant’s condition. I explain my reasons below.
What happened?
The background
The applicant is a middle aged lady. She is a qualified electrical engineer with an interest in aeronautical engineering. She has worked in defence-related industries for about 20 years. She commenced her employment with the Department of Defence in 2003. In 2007, she became Deputy Senior Design Engineer in the Aeronautical Life Support Logistics Management Unit (ALSLMU). The ALSLMU was part of the Marine Patrol Systems Program Office (MPSPO) which was headed by an air force officer with the rank of Group Captain. The applicant’s role was classified as Executive Level 1 (EL1). She initially reported to a manager who was classified as Executive Level 2 (EL2). She said in her statement (exhibit 1 at p 19) that she was the only female EL1 in the ALSLMU.
It seems the applicant has experienced friction in the workplace for some time. During her evidence-in-chief, she spoke about difficulties she experienced in dealing with Mr McIntyre, her first supervisor. In her supplementary statement dated 30 March 2017 (exhibit 24), she recalled Mr McIntyre expressing doubt over her appointment as deputy senior design engineer in 2008. The statement also refers to…

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 Nguyen and Comcare (Compensation)

Details

AGLC: Nguyen and Comcare (Compensation) [2018] AATA 1623
Case: [2018] AATA 1623
Decision Date: 6 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Nguyen against a decision by Comcare. The dispute centred on whether Mr. Nguyen's claimed psychological condition, allegedly arising from bullying and mismanagement, was compensable under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The decision was made by Deputy President Bernard J McCabe of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the actions complained of by Mr. Nguyen constituted "reasonable administrative action taken in a reasonable manner" within the meaning of section 5A of the SRC Act. This section operates as an exclusion to compensation for certain conditions. The Tribunal was required to determine if the performance review undertaken by Mr. Barton, which Mr. Nguyen alleged was the source of his distress, was reasonable in its conception and execution.

Deputy President McCabe found that the performance review conducted by Mr. Barton was reasonable in both its conception and execution. While acknowledging that the review had a significant and detrimental impact on Mr. Nguyen's health, causing both corrosive effects during its progression and catastrophic effects upon the communication of its findings, the Tribunal concluded that this impact did not negate the reasonableness of the administrative action itself. Consequently, the exclusion under section 5A of the SRC Act was found to apply.

The Tribunal affirmed the reviewable decision.

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

I am not persuaded Mr Barton’s review was unreasonable in conception or execution. I accept his review amounted to reasonable administrative action. The effect of that action on the applicant’s health appeared to be corrosive (while the review continued) and catastrophic (once the findings were communicated to the applicant). The effect of that action clearly aggravated the applicant’s existing symptoms, such as they were, to a significant degree. I am satisfied the exclusion in s 5A of the SRC Act applies.CONCLUSION The reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

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