O'Callaghan and Comcare (Compensation)

Case [2019] AATA 4378

O'Callaghan and Comcare (Compensation) [2019] AATA 4378 (29 October 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3006

Re:Stuart O'Callaghan

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:29 October 2019

Place:Canberra

The decision under review is set aside and in place thereof the Tribunal decides that Mr O’Callaghan sustained an injury for which Comcare is liable to pay compensation from 3 August 2016.

The matter is remitted to Comcare to determine the amount of compensation that is payable, subject to claim.

The parties have not been heard as to costs. Written submissions addressing this subject may be given to the Tribunal within 14 days of the date of this decision. Should no such submissions be made, Comcare will be ordered to pay Mr O’Callaghan’s reasonable costs in these proceedings under s 67(8) of the Safety, Rehabilitation and Compensation Act 1988, as agreed or taxed.

.....................................................................

Mr S. Webb, Member

WORKERS’ COMPENSATION – compensation claim in respect of adjustment disorder ailment – employment contribution to a significant degree – ‘disease’ – exclusionary provision – reasonable administrative action taken in a reasonable manner in respect of the employee’s employment – performance counselling – reasonable administrative action taken in respect of the employment – action not taken in a reasonable manner – ‘injury’ for which Comcare is liable – decision set aside and remitted

Legislation

Safety, Rehabilitation and Compensation Act 1988 s 4, 5A, 5B, 14, 67
Australian Federal Police Act 1979 s 37(1)

Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No3) [2013] FCA 439
Comcare v Stewart [2019] FCA 365
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Drinkwater v Comcare [2018] FCAFC 62
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056
Lim v Comcare [2017] FCAFC 64
Lim v Comcare [2019] FCAFC 104
Long v Comcare [2016] FCA 737
Martin v Comcare [2015] FCAFC 169

Secondary Materials
Australian Federal Police, Better Practice Guide on Effective People Management.

Australian Federal Police, Performance Development Agreement (PDA) Procedures.

REASONS FOR DECISION

Mr S. Webb, Member

29 October 2019

  1. Stuart O’Callaghan claimed compensation in respect of a psychological ailment that was significantly contributed to by his employment as a police officer in the Australian Federal Police (AFP). By primary determination and on reconsideration, Comcare refused the claim. Unhappy with this result, he applied for review by the Administrative Appeals Tribunal (Tribunal).

  2. Mr O’Callaghan’s claim and the Tribunal proceedings have a narrow compass. There is no dispute between the parties that Mr O’Callaghan suffered an adjustment disorder as a result of a meeting in his employment on 2 August 2016, in which issues of unsatisfactory performance were raised against him. As will appear, the present materials clearly establish that this is correct and, absent actions taken during the meeting, Mr O’Callaghan would not have become unwell. So much is agreed between the parties.

  3. There is a controversy, however, over the proper characterisation of the meeting or related action as ‘reasonable administrative action taken in a reasonable…

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Details
AGLC
O'Callaghan and Comcare (Compensation) [2019] AATA 4378
Case
[2019] AATA 4378
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr O’Callaghan against a decision by Comcare. The dispute centred on whether Mr O’Callaghan had sustained an injury for which Comcare was liable to pay compensation, and if so, the date of that injury. The case was heard by Mr S. Webb, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine the date of Mr O’Callaghan's "injury" for the purposes of the relevant Act, and consequently, Comcare's liability to pay compensation. This required the Tribunal to assess the evidence presented, particularly the conflicting accounts of Mr O’Callaghan and Mr Meagher, and to consider the established procedures for managing under-performance within the Australian Federal Police (AFP).

The Tribunal reasoned that while there were documented instances of under-performance in Mr O’Callaghan's earlier career with the AFP, his performance records from March 2014 to February 2016 did not expressly record under-performance, despite a period of "re-skilling" and a promotion. The Tribunal found Mr O’Callaghan to be a relatively straightforward witness, accepting that his memory of events might be affected by psychological distress. The Tribunal noted the absence of other key witnesses, such as Sergeant Nallo, due to illness. Ultimately, the Tribunal determined that the date of injury, for the purposes of the Act, was 3 August 2016, based on the date Mr O’Callaghan first sought medical treatment and was certified as incapacitated for work.

The decision under review was set aside. The Tribunal ordered that Mr O’Callaghan sustained an injury for which Comcare is liable to pay compensation from 3 August 2016. The matter was remitted to Comcare to determine the amount of compensation payable. The parties were to make submissions on costs.

Orders

Orders of the court

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Background

Background to the litigation

As can be seen, the four-step process for managing under-performance allows for some flexibility. Nevertheless, the basic procedural tenets underlying the process, including the requirements for specificity, procedural fairness and appropriate documentary evidence, are very clear. FACTS Mr O’Callaghan was first employed by the AFP in 2007. He underwent training and became a sworn police officer. He performed general duties as a Constable. In the period from 2008 to 2011, issues were raised in respect of Mr O’Callaghan’s performance. He was counselled and performance issues, including remedial objectives, were noted in his PDAs. These related to decision-making, organisation, timeliness and written work.[11][11] See for example Exhibit 1, pages 11, 13, 16, and 24. In or about 2010, Mr O’Callaghan was transferred to general duties at the Canberra Airport and subsequently he undertook duties with the Crime Prevention Team. His PDAs from September 2010 to August 2012 do not record any under-performance. In 2012, Mr O’Callaghan resigned from the AFP and took up employment with ACTION, the public transport service of the Australian Capital Territory. He maintains this was for personal and family reasons. In or about March 2014, he returned to AFP employment and was assigned to the Tuggeranong Police Station. In the period from March 2014 to February 2016, Mr O’Callaghan’s PDAs do not expressly record under-performance. This notwithstanding, it is quite clear that Mr O’Callaghan underwent a period of “re-skilling” on resumption of general police duties.[12] In 2015, he was promoted from Constable to Senior Constable. The PDA covering March to August 2015 records that –Senior Constable O’Callaghan continues to make steady progress in relation to statements and client interaction and with his recent presentation of senior constable status, he will be expected to take an even more leading role within the team and mentoring newer members.[13][12] Exhibit 1, page 40; Exhibit 2.[13] Exhibit 1, page 47; Exhibit 2. On or about 8 September 2015, while conducting a search for a missing person, Mr O’Callaghan twice collided with stationery objects, causing minor damage to the AFP vehicle he was driving. Following standard procedure, these incidents were reviewed by the Driving Incident Review Committee (DIRC).[14] [14] T12B, folio 124. In or about October 2015, Mr Meagher (now retired) commenced as Station Sergeant, Officer in Charge, at the Tuggeranong Police Station. In this role he was superior to Mr O’Callaghan’s then immediate supervisors, initially Sergeant Rollings and subsequently Acting Sergeant Fitzroy followed by Sergeant Nallo. Mr Meagher gave evidence that he transferred Mr O’Callaghan to a team supervised by Sergeant Nallo for reasons of under-performance. As can be seen from Mr O’Callaghan’s PDA ending in February 2016, the September 2015 driving incident is referred to but, otherwise, no issue of under-performance is recorded. This notwithstanding, Mr Meagher asserts that he discussed under-performance and the reasons for the transfer with Mr O’Callaghan in a meeting on 11 January 2016. In a contemporaneous note Mr Meagher recorded –Conversation with Stuart O’Callaghan and his acting Sgt Darren Fitzroy re his moving to Team 3 on the 17th of February.Stuart is happy to go and agrees he learns differently (as suggested) by me and I want him to look at being confident and competent enough by the end of the year to be considered for acting duties.He is happy with the move and agrees he could use a little polish to assist with his confidence and write offs/paperwork.[15][15] T12B, folio 126.

Evidence

Evidence Before The Court

Before dealing with this issue, at this point, it is desirable to say something about two aspects of this case. The first is in respect of witness evidence. The second is in respect of AFP performance development procedures.WITNESS EVIDENCE As will appear, of those people who had direct experience of relevant events in this case, only two gave oral evidence: Mr O’Callaghan (then a Senior Constable at the Tuggeranong Police Station) and Mr Meagher (then a Senior Sergeant and Officer in Charge of the Tuggeranong Police Station). On important points, their evidence is in conflict. In cases of this kind, it is often difficult to distinguish probable fact from plausible fiction. This is especially so where the evidence of witnesses is conflicted and contemporaneous materials do not exist or are insufficient to resolve the conflict. While, as here, issues of credit, reliability, consistency and corroboration must be carefully assessed when deciding the weight particular evidence is to be given, an equivalent assessment must be applied to contrary evidence on the particular point. It is in this way that the conflicted evidence of Mr O’Callaghan and Mr Meagher must be assessed. Comcare argues that Mr O’Callaghan’s evidence is not reliable and should be given little weight. In my assessment, Mr O’Callaghan was a relatively straight-forward witness even though, at times, he had difficulty remembering details and, at other times, he was imprecise and circuitous when answering questions put to him in cross-examination. To my mind, these aspects of his evidence and his conduct as a witness do not necessitate an adverse finding of the kind sought. I accept that Mr O’Callaghan might genuinely experience difficulty recalling precise details of what occurred in 2016, especially where those circumstances are associated, in his mind at least, with psychological distress and trauma. Nevertheless, unreliability of this kind requires careful assessment of weight that can properly be given, fact by fact, especially in the presence of inconsistency. Furthermore, to the extent that Mr O’Callaghan was cautious or circuitous under cross-examination, to my mind he was not obstructive, dissembling or guileful when answering questions put to him, and his conduct as a witness was not so egregious that his evidence, generally, should be discounted or given little weight. With the exception of Mr Meagher, other people with direct experience of relevant matters in this case were not available, or were not called, to give oral evidence. Sergeant Nallo was Mr O’Callaghan’s direct supervisor from March 2016 and, in this role, he was directly involved in events at the heart of this case. When the proceedings came on for hearing, however, Sergeant Nallo was unwell and he was not available to give oral evidence. This situation did not change after a delay of several months, following commencement of the hearing. He provided a medical certificate which was not challenged.[1] The Tribunal accepts that Sergeant Nallo is unwell and that he is unlikely to recover sufficiently to give oral evidence in the near future. For this reason, I accept that any further delay would, in all likelihood, be futile. In these unfortunate circumstances, it is necessary to do the best with the available evidence. [1] Exhibit 5.

Decision

Reasons for decision

While the parties have not been heard on matters relating to the date of the ‘injury’ under s 7 of the Act, it is quite clear that Mr O’Callaghan first sought medical treatment from Dr Brown on 4 August 2016 and Dr Brown subsequently certified that he was incapacitated for work from 3 August 2016.[88] For the purposes of the Act, that is the date of the ‘injury’.[88] T4, folio 19.DECISION The decision under review is set aside and in place thereof the Tribunal decides that Mr O’Callaghan sustained an injury for which Comcare is liable to pay compensation from 3 August 2016. The matter is remitted to Comcare to determine the amount of compensation that is payable, subject to claim. The parties have not been heard as to costs. Written submissions addressing this subject may be given to the Tribunal within 14 days of this decision. Should no such submissions be made, Comcare will be ordered to pay Mr O’Callaghan’s reasonable costs in these proceedings under s 67(8) of the Act, as agreed or taxed.

Ratio Decidendi

Legal Principle Established

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