O'Connell and Comcare (Compensation)

Case [2017] AATA 178

O'Connell and Comcare (Compensation) [2017] AATA 178 (14 February 2017)

Division:GENERAL DIVISION

File Numbers:         2015/1341 and 2015/1762

Re:Kerrie O'Connell

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President K Bean
Senior Member S Raymond

Date:14 February 2017

Place:Adelaide

1. In Application 2015/1341, the Tribunal sets aside the decision under review and in substitution for that decision, decides that pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), the respondent is liable to pay compensation to Ms O’Connell for an “adjustment disorder”, with a date of injury of 7 February 2013.

2. In Application 2015/1762, the Tribunal sets aside the decision under review and in substitution for that decision, decides that, pursuant to s 14 of the SRC Act, the respondent is liable to pay compensation to Ms O’Connell for an “adjustment disorder”, with a date of injury of 21 January 2014.

………[ Sgd] ………………………..
Deputy President K Bean

CATCHWORDS

COMPENSATION – Commonwealth employee – Significant contribution from employment to adjustment disorders conceded – Whether adjustment disorders resulted from reasonable administrative action, taken in a reasonable manner – Administrative actions not reasonable – Whether evidence also supports liability for “elevated stress” – Decisions under review set aside.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14, 54, 69, 72

Public Service Regulations 1999, Reg 3.2

CASES

Lang and Comcare (2007) 94 ALD 141

Aunela and Telstra Corporation Limited (2008) 102 ALD 219
Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

Deputy President K Bean
Senior Member S Raymond

14 February 2017

  1. The applicant, Ms O’Connell, is employed by the Department of Human Services as a Customer Service Officer and has worked in Centrelink since May 2006. She is regarded as effective at her job and has on occasions acted in a higher position as a scheduler.

  2. Prior to 2013, Ms O’Connell had experienced a number of personal and health events giving rise to her taking unplanned leave. In February 2013, some matters were raised with Ms O’Connell’s supervisor by fellow employees. These matters related to Ms O’Connell’s manner in dealing with Centrelink customers on the telephone. This led to a meeting being held on 7 February 2013, between Ms O’Connell and her supervisor, Mr Rugari, which caused Ms O’Connell significant distress and resulted in her being absent from work for a number of days following the meeting.

  3. Ms O’Connell subsequently continued to have regular absences from work, resulting in various actions by her employer which we will describe and explain further below. Her continuing absences from work together with assessments and decisions made by her employer in turn ultimately led to her being referred for a Fitness for Duty (FFD) Assessment in January 2014. This referral, and the circumstances surrounding it, also caused Ms O’Connell significant distress, as we will go on to explain.

  4. About six months later, on 8 July 2014, Ms O’Connell lodged a claim for compensation for ‘severe anxiety’ and ‘stress’. In…

Continue reading O'Connell and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
O'Connell and Comcare (Compensation) [2017] AATA 178
Case
[2017] AATA 178
Decision Date

CaseChat Overview and Summary

This matter concerned two applications by Ms O’Connell for review of decisions by Comcare that denied liability for her claims for compensation. The applications related to an adjustment disorder allegedly suffered by Ms O’Connell, with one claim arising from a meeting on 7 February 2013 and the other from a notice requiring her to attend a medical assessment on 13 January 2014. The Administrative Appeals Tribunal was required to determine whether Comcare was liable to pay compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act).

The primary legal issues before the Tribunal were whether Ms O’Connell’s adjustment disorders constituted an “injury” as defined by the SRC Act, and if so, whether any such injury was excluded from compensation by reason of being a result of reasonable administrative action taken in a reasonable manner. Specifically, the Tribunal had to consider if the meeting on 7 February 2013 and the direction to attend a medical assessment were reasonable administrative actions taken reasonably. The Tribunal also considered whether the evidence supported liability for “elevated stress” in addition to the adjustment disorders.

The Tribunal found that while the significant contribution of employment to Ms O’Connell’s adjustment disorders was conceded, the exclusion for reasonable administrative action was not applicable. Regarding the 2013 incident, the Tribunal determined that the meeting conducted by Mr Rugari was not reasonable administrative action taken in a reasonable manner, as the feedback provided to Ms O’Connell lacked particularity and detail, and she was not afforded an opportunity to respond adequately. Similarly, the direction to attend a medical assessment was also found not to be reasonable administrative action taken in a reasonable manner. The Tribunal applied the principles of s 14 and s 5A of the SRC Act, noting that an injury includes a disease contributed to significantly by employment, unless it arises from reasonable administrative action taken reasonably.

Consequently, the Tribunal set aside Comcare’s decisions under review. In substitution, the Tribunal decided that Comcare was liable to pay compensation to Ms O’Connell for an adjustment disorder, with the date of injury being 7 February 2013 for the first application and 21 January 2014 for the second application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 23 March 2015, Ms O’Connell applied to the Tribunal for review of the reconsideration decision of 11 February 2015[6] denying liability for her original claim, giving rise to Application 2015/1341. On 15 April 2015, she applied for review of the reconsideration decision of 17 March 2015[7] denying liability for an “anxiety state” sustained on 22 January 2014, and giving rise to application 2015/1762.[6] Ibid, T59/348.[7] Exhibit 3, T1/13.BACKGROUND FACTS As we have indicated, there are two events identified as giving rise to the matters before the Tribunal. The first is the meeting on 7 February 2013 (the 2013 incident). Following that incident, Ms O’Connell was absent from work on 8, 11 and 12 February 2013. She subsequently returned to work, but thereafter there were further periods of absence.[8][8] Exhibit 1, T46/317. The respondent asserts that Ms O’Connell continued to access a significant amount of leave and accessed 358 hours of personal leave, 219 hours of recreation leave (some used in lieu of sick leave) and three days of flex leave throughout 2013 (see Respondent’s Statement of Issues, Facts and Contentions dated 7 July 2016, [4.38].) The second event (the 2014 incident) related to a notice, served on Ms O’Connell on 13 January 2014 by her employer, advising her that she must attend for a FFD Assessment with Dr Sara Souter, Occupational Physician. Ms O’Connell sought a review of this direction and on 28 January 2014 the decision to require her attendance at a FFD Assessment was affirmed. Dr Souter provided a report dated 10 February 2014[9] in which she recommended assessment by a psychiatrist.[9] Exhibit R3, T6.THE LEGISLATION The relevant law is contained in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Section 14 of the Act provides relevantly that Comcare is liable to pay compensation in respect of an “injury” if the injury results in incapacity or impairment. In s 5A, an “injury” is defined to include a “disease”, and “disease” is defined in s 5B of the SRC Act as:·“an ailment suffered by an employee” or “an aggravation of such an ailment”;·“that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or licensee”. However, the definition of “injury” in s 5A of the SRC Act does not include a disease, injury or aggravation suffered as “a result of reasonable administrative action, taken in a reasonable manner, in respect of the employee’s employment”. Subsection 5A(2) of the SRC Act refers to reasonable administrative action and provides a list of matters included in the concept. It is not an exhaustive list. The list is as follows: (2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following: (a) a reasonable appraisal of the employee's performance; (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment; (c)a reasonable suspension action in respect of the employee's employment; (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment; (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d); (f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.JURISDICTION

Evidence

Evidence Before The Court

Ms Klar gave oral evidence to the effect that she had discussed the meeting with Mr Rugari. She mentioned the fact that Ms O’Connell was upset to learn that other people had been discussing her performance and passing on the feedback. She and Mr Rugari had a discussion about presenting feedback more positively and presenting it as feedback rather as a complaint. Ms Klar gave evidence to the effect that Mr Rugari had indicated to her that he did not like anonymous feedback himself, but that the feedback was provided from staff members out of concern for Ms O’Connell’s wellbeing and the staff members were not willing to provide names.Analysis of evidence of the meeting The only detailed evidence about the conversation at the meeting came from Ms O’Connell. Given the lapse in time, Mr Rugari’s recollections of the exact backdrop to the meeting and content of the conversation were vague. However, as to the significant features of the meeting there is no real dispute. We find as follows:·Mr Rugari called the meeting. The meeting was held in an office. Only Mr Rugari and Ms O’Connell were present. It was informal in nature. The meeting took place following matters conveyed to Mr Rugari by a number of staff members relating to Ms O’Connell’s interactions with members of the public on the telephone. What was conveyed to Ms O’Connell was in relation to her manner being loud and her using inappropriate language. Mr Rugari did not identify the source of the complaints (other than confirming it was staff in response to a question from Ms O’Connell). There was no particularity or detail provided of the conduct or manner beyond the general comment as to her manner. Ms O’Connell became upset. She was permitted to go home. It is unclear to us whether the meeting was in fact called primarily because of concern for Ms O’Connell’s wellbeing, or with a view to improving her manner with customers, or a combination of both. From the material before us, and accepting that Mr Rugari’s recollection was very limited as to the detail and background to the conversation, we accept that the matters conveyed to him by a number of other staff members related to Ms O’Connell’s interactions with one or more members of the public on the telephone. They related to her manner being loud and using inappropriate language. Ms O’Connell indicated that she did not necessarily accept that such complaints had been made. We accept on the evidence that they were. We should add that is not clear that Mr Rugari used the word “complaint”, but Ms O’Connell indicated that he did. We accept that he may have used the word “complaint”. In any event, in our view, nothing turns on whether that word was used or not. Was the 7 February 2013 meeting reasonable administrative action carried out in a reasonable manner? The nature of the concerns raised with Mr Rugari related not just to Ms O’Connell, but her dealings with members of the public. Ms O’Connell was an experienced officer having worked at Centrelink for approximately seven years. It was appropriate that the “complaints” be considered by Mr Rugari, as Ms O’Connell’s supervisor.

Decision

Reasons for decision

So far as we are aware, Ms O’Connell has not incurred any legal costs or disbursements in the context of this matter. However if she has, it will be open to her to seek an order pursuant to subs 67(8) of the SRC Act that these be reimbursed by the respondent.DECISION In Application 2015/1341, the Tribunal sets aside the decision under review and in substitution for that decision, decides that pursuant to s 14 of the SRC Act, the respondent is liable to pay compensation to Ms O’Connell for an “adjustment disorder”, with a date of injury of 7 February 2013. In Application 2015/1762, the Tribunal sets aside the decision under review and in substitution for that decision, decides that, pursuant to s 14 of the SRC Act, the respondent is liable to pay compensation to Ms O’Connell for an “adjustment disorder”, with a date of injury of 21 January 2014.

Ratio Decidendi

Legal Principle Established

In addition, on our analysis, an issue arises on the evidence as to the correct characterisation of Ms O’Connell’s ailments. As this will only arise in the event we find s 5A does not operate so as to exclude compensation liability, we will return to it later in our Reasons.CONSIDERATION The 2013 IncidentThe details of the incident The evidence is that Ms O’Connell had worked in a team supervised by Mr Joe Rugari since March 2011. He was her team leader and supervisor. She had spent time working in a different team acting in a higher level position as a scheduler during the period prior to January 2013. She returned to Mr Rugari’s team on 2 January 2013. On Thursday, 7 February 2013, Ms O’Connell was asked by Mr Rugari to have a meeting with him. This meeting took place in a room and not at Ms O’Connell’s workstation. No other person was present at the meeting. Mr Rugari’s recollection of what was said at the meeting was limited. Ms O’Connell was able to recall in detail what transpired at the meeting. There were no notes produced of the discussions which took place at the meeting. There are three sources of information before the Tribunal from Mr Rugari about the meeting on 7 February 2013 and the matters which led to it. Those sources of information are:·A statement of Mr Rugari submitted with a letter to Comcare dated 24 September 2014;[13]·A statement of Mr Rugari dated 7 July 2016;[14] and·Oral evidence of Mr Rugari given at the hearing.[13] Exhibit R3, T26/187.[14] Exhibit R4. In Mr Rugari’s first written statement there is reference to a number of staff members (in the region of four-five staff members) raising issues with Mr Rugari over a two-three week period. The statement records that they thought Ms O’Connell’s phone manner was inappropriate. It records that they thought she was rude to her customers by raising her voice and speaking in a very strong tone to customers. The statement refers to one particular call which was drawn to Mr Rugari’s attention. He listened to the call but determined that her handling of a challenging situation was satisfactory. The later statement refers to three or four team members speaking to Mr Rugari about Ms O’Connell. This appeared to relate to one call which they had all overheard. The statement records that according to them she was speaking quite loudly and using language that was inappropriate. Mr Rugari indicated that he had not heard this call. In oral evidence, under questioning about the backdrop to the meeting, Mr Rugari indicated that he could not recall exactly how many people had raised issues with him and whether he was approached about them or whether issues had been raised by staff members in the course of other discussions with him. He was asked to name employees who raised issues with him about Ms O’Connell and ultimately could name two. He could not now recall the other persons. He said he had formed the view that he would not await the next coaching session (held approximately monthly) with Ms O’Connell but would raise the matters with her informally.