Peta Martin and Comcare

Case [2014] AATA 553

[2014] AATA 553 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/0404

Re

Peta Martin

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Senior Member A K Britton
Date 11 August 2014
Place Sydney

The Tribunal sets aside the decision under review and in substitution of that decision, decides that Comcare is liable for Ms Martin’s adjustment disorder under s 14 of the Act.

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Senior Member A K Britton

CATCHWORDS

WORKERS’ COMPENSATION — Psychiatric injury — Whether injury is the result of reasonable administrative action taken in a reasonable manner — Reasonableness to be assessed with reference to the circumstances surrounding the action

PRACTICE AND PROCEDURE – procedural fairness – role of “pleadings”   

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 25(4A), 39

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4; 5A(1);5A(2); 5B(1); 5B(3); 7(4); 14

Workers Rehabilitation and Compensation Act 1986 (SA)

CASES

Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1 at [29]Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
National Australia Bank Limited v KRDV [2012] FCA 543; (2012) 204 FCR 436Rand and Comcare [2014] FCA 584

Smith v Comcare [2013] FCAFC 65; (2013) 212 FCR 335

SECONDARY MATERIALS

AAT, Guide to the Workers’ Compensation Jurisdiction, Version 2.0 September 2013

REASONS FOR DECISION

Senior Member A K Britton

11 August 2014

  1. Ms Peta Martin worked at the Australian Broadcasting Corporation between January 2010 and March 2012. Comcare decided to refuse to accept Ms Martin’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of her claimed injury “anxiety depression”. Ms Martin has asked the Tribunal to review the matter. For reasons I will explain, I have decided to set aside Comcare’s decision.

  2. The parties agree that Ms Martin was suffering from an adjustment disorder when she made her claim for compensation in June 2012, and that condition was contributed to, to a significant degree, by her employment with the ABC. They disagree however about whether, as contended by Comcare, Ms Martin’s condition was “a result of” the decision not to appoint her to the position of cross media reporter and, if so, whether that decision constitutes “reasonable administrative action taken in a reasonable manner”. If the answer to each of these questions is “yes”, by the operation of s 5A of the Act, the ABC will not be liable for Ms Martin’s adjustment disorder.

  3. Ms Martin contends that she had been suffering from an adjustment disorder for about nine months before she learnt that her application for appointment to the position of cross media reporter was unsuccessful. She claims that the primary cause of her condition was the bullying and harassment she was subjected to throughout the two years she worked at…

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AGLC
Peta Martin and Comcare [2014] AATA 553
Case
[2014] AATA 553
Decision Date

CaseChat Overview and Summary

In the case of Peta Martin and Comcare, the primary dispute was whether the respondent, Comcare, was vicariously liable for the failure of the Australian Broadcasting Corporation (ABC) to provide a safe work environment for the applicant, Ms Martin, who alleged she was subjected to bullying and harassment by her immediate supervisor. The Federal Circuit Court of Australia was tasked with determining if Comcare was liable to compensate Ms Martin for her psychological injury, which arose from her failure to secure a promotion to the position of cross media reporter. The court had to decide whether the failure to obtain the promotion constituted "reasonable administrative action" under section 5A(2) of the relevant legislation, which could exempt Comcare from liability.

The key legal issue was the interpretation of "reasonable administrative action" as it related to the failure to obtain a promotion. Specifically, the court had to determine whether Ms Martin's failure to secure the promotion constituted a reasonable administrative action under the statute. The court also had to consider the nature of Ms Martin's psychological injury and its causation, particularly whether it was a direct result of the failure to obtain the promotion or other factors such as her anticipated return to work under her previous supervisor, Mr Mellett. The court was required to balance the statutory exemption with the obligation to provide a safe work environment, and whether Ms Martin's failure to secure the promotion fell within the scope of the exemption.

The court held that the failure to obtain the promotion did not constitute "reasonable administrative action" because it did not involve any action taken by the ABC in connection with Ms Martin's employment. The court reasoned that the failure to obtain the promotion was not an administrative action but rather a consequence of the selection process. Furthermore, the court found that Ms Martin's psychological injury was a direct result of the failure to obtain the promotion and the associated consequences, including her return to work under Mr Mellett. The court rejected the argument that the failure to obtain the promotion should be considered synonymous with career advancement or monetary reward, as it found that the primary cause of Ms Martin's psychological injury was her anticipated return to work under Mr Mellett. Consequently, the court held that Comcare was liable for Ms Martin's psychological injury.

In conclusion, the court ordered Comcare to compensate Ms Martin for her psychological injury arising from the failure to obtain the promotion to the position of cross media reporter. The court found that Comcare was vicariously liable for the ABC's failure to provide a safe work environment and that the failure to obtain the promotion did not constitute reasonable administrative action under the statute.

Orders

Orders of the court

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Background

Background to the litigation

Section 5A(2) defines “reasonable administrative action” to mean:For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following: …(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. Background Ms Martin commenced employment as a producer of the ABC’s local morning radio program in January 2010. Based in Renmark, South Australia, Ms Martin’s position involved finding and researching stories, identifying and briefing suitable interviewees, and preparing scripts for, and providing support to, on-air presenters. Ms Martin initially worked under the direct supervision of Mr Bruce Mellett who, among other things, was the presenter of the local ABC breakfast program broadcast from Renmark. In August 2011 she was appointed to act on a temporary basis in the role of cross media reporter. In that role she continued to work out of the Renmark studio but came under the supervision of Hobart based Ms Carol Raabus. When the permanent position of cross media reporter was advertised the following year, Ms Martin applied and was interviewed for that position. Chaired by Ms Raabus, the selection panel included Mr Mellett and regional content director, Mr Johnathon Wright. When advised in March 2012 that her application had been unsuccessful and she would be returning to her substantive position under the supervision of Mr Mellett, Ms Martin “broke down”. She was subsequently diagnosed as suffering from an adjustment disorder. Since March 2012 she has been certified unfit for work.Allegations of bullying and harassment In an undated statement prepared by Ms Martin and submitted to the ABC in April 2012 (the first statement) Ms Martin outlined a number of instances of “bullying and harassment” by Mr Mellett and, on occasion, cross media reporter Mr Tom Coull, who was also based at Renmark (until August 2012). In these proceedings she claimed that statement only included the more serious examples of mistreatment. In a subsequent statement Ms Martin addressed Mr Mellett’s response to her allegations ((Exhibit A2) (the second statement)). She claimed that in preparing both statements, she had relied on contemporaneous notes taken by hand and entered into her home computer. According to Ms Martin, throughout the period she worked at the Renmark studios she was either bullied or ignored by Mr Mellett and the work environment was “toxic”. In July 2011 in the course of investigating allegations made by Renmark-based ABC producer, Ms Susan Rooney-Harding, about her treatment at work, ABC manager Mr David Hua questioned Ms Martin and was told she also had difficulties with Messrs Mellett and Coull. Mr Hau’s impression from that conversation was that Ms Martin was not very forthcoming, which he found not surprising given they had never spoken before and understandably she may have been concerned that any disclosure made might “travel”. Mr Hua encouraged Ms Martin to make notes of any inappropriate conduct and advised that unless she was willing to document her complaints little could be done. Ms Martin claims that in the course of that conversation Mr Hau said even if she made a complaint he could not “protect her”. Mr Hau strenuously denies that account of the conversation and contends that had there been any suggestion that Ms Martin was “unsafe” he would not have hesitated to act. Mr Hua heard nothing further about Ms Martin’s concerns until informed that she had made a claim for workers compensation alleging that she had been subjected to bullying and harassment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Drs Begg and Clarke agree that the history each had been given, which they agreed was broadly the same, did not suggest that Ms Martin had any particular interest in the cross media role or a “yen for career advancement” but rather saw the position as a way to remove herself from Mr Mellett’s supervision. In their opinion the deterioration in Ms Martin’s condition was caused by her realisation that she would be required to return to work under the supervision of Mr Mellett and, as she saw it, her position had become hopeless. They agreed that any “yen” for the position was so minor its contribution to Ms Martin’s adjustment disorder was immaterial. Conclusion I do not agree, as I understand Comcare to suggest, that Ms Martin’s claim that the primary reason she applied for the role of cross media reporter was to remove herself from the supervision of Mr Mellett, is a recent invention designed to avoid the operation of s 5A of the Act. There is powerful evidence to corroborate Ms Martin’s claim that her belief she had been mistreated by Mr Mellett pre-dated the decision not to promote her to the position of cross media reporter. This includes the notes made by the counselling service and Dr Kulatunga, the evidence given by Ms Rooney-Harding and the evidence of the conversation between Ms Martin and Mr Hau in July 2011. I accept Ms Martin’s claim that the cross media reporter position was not her preferred option and the primary reason she applied for that position was to remove herself from Mr Mellett’s direct supervision. I agree with the experts that what caused her to “decompensate” was the realisation that the decision meant she would be returning to Mr Mellett’s supervision and her belief that the alleged bullying would continue. While the Act is beneficial in nature, I see no warrant, as suggested for Ms Martin, for interpreting the phrase “failure to obtain a promotion” in s 5A(2)(f) as being synonymous with “failure to obtain career advancement” or “failure to obtain monetary or other reward”. A number of consequences flowed from Ms Martin’s failure to obtain the promotion to the position of cross media producer. These included:·Ms Martin would be required to return to her substantive position and work under the direct supervision of Mr Mellett; and ·Ms Martin would be denied a small pay increase and the opportunity to further develop her skills in cross media production. The question posed by s 5A(1) is whether the claimed ailment was suffered as a result of the nominated action, in this case the failure to obtain the promotion. It matters not which of the anticipated consequences of the offending decision was most likely to have troubled Ms Martin. That her reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement, is irrelevant. In her mind the former was a direct and foreseeable consequence of the decision.

Ratio Decidendi

Legal Principle Established

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