PKZS and Comcare (Compensation) - [2025] ARTA 4

PKZS and Comcare (Compensation) [2025] ARTA 4 (6 January 2025)
Applicant/s:  PKZS
Respondent:  Comcare
Tribunal Number:                2022/8343
2024/2632

Tribunal:Senior Member S Webb
Place:Canberra
Date:6 January 2025

Decision:

The decision under review in application 2022/8343 is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation under s 14 of the SRC Act in respect of the adjustment disorder injury PKZS suffered on 7 April 2020.
The decision under review in application 2024/2632 is affirmed.

…………[SGD]………………

Senior Member S Webb

WORKERS’ COMPENSATION – psychological injury claim – alleged breaches of the APS Code of Conduct - Code of Conduct investigation – disease – administrative action not undertaken in a reasonable manner – exclusion from ‘injury’ not made out – liability to pay compensation – decision set aside and substituted

WORKERS’ COMPENSATION – aggravation injury claim – increased stress and symptoms – interview in the course of investigation of alleged breaches of APS Code of Conduct – disease – testing of allegations in fact finding investigation – conduct of interview – reasonable despite possibility of improvement – aggravation resulted from reasonable administrative action undertaken in a reasonable manner in respect of applicant’s employment – exclusion from ‘injury’ applies – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Public Service Act 1999 (Cth), ss 10A, 13, 14, 15
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14, 67

Cases

Beasley and Comcare [2012] AATA 411
Comcare v M [2016] HCA 43
Lee and Comcare [2012] AATA 867
Lim v Comcare [2017] FCAFC 64
Lynch and Comcare [2010] AATA 38
Melder and Comcare [2013] AATA 534

Secondary Materials

Australian Public Service (APS) Code of Conduct

Australian Public Service Commissioner’s Directions 2016

Handling Misconduct: A human resource manager’s guide

Procedures for Determining Breaches of the APS Code of Conduct

Statement of Reasons

As the factual circumstances in this case involve matters of family violence and mental illness, the Applicant will not be identified by name. She will be referred to as PKZS.
PKZS was employed in a Commonwealth government department (Department). PKZS’s marriage broke down. PKZS experienced a reactive mental disorder and was unable to work for a time. PKZS became friendly with and was supported by a work supervisor. For the purposes of these reasons, it is not necessary to identify the supervisor and, for privacy reasons, I will refer to him as ‘Mr Y’. This raised suspicions in the Department about an undeclared personal relationship between PKZS and Mr Y and a related conflict of interest from which PKZS sought to benefit. PKZS was subjected to a formal investigation. PKZS’s mental health was affected by notice of this and by a formal interview which was subsequently conducted. PKZS claimed compensation for injury arising from these circumstances. Comcare decided to refuse the claims by primary determination and on reconsideration. PKZS lodged…

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 PKZS and Comcare (Compensation)

Details

AGLC: PKZS and Comcare (Compensation) [2025] ARTA 4
Case: [2025] ARTA 4
Decision Date: 6 January 2025

CaseChat Overview and Summary

The case of PKZS and Comcare (Compensation) [2025] ARTA 4 involved two applications for review by PKZS, an employee of a Commonwealth government department, of Comcare’s decisions to refuse her compensation claims. The first application, 2022/8343, concerned a claim for compensation in respect of an adjustment disorder with depression and anxiety PKZS attributed to the Department’s decision to investigate her for possible breaches of the Australian Public Service (APS) Code of Conduct. The second application, 2024/2632, concerned a claim for compensation for an aggravation of the adjustment disorder which PKZS attributed to her formal interview in the course of the Investigation. The applications were heard by the Administrative Review Tribunal (ART) and determined by Senior Member S Webb.

The Tribunal found that PKZS’s adjustment disorder was significantly contributed to by her employment, specifically by the manner in which she was informed of and given notice of the Investigation into alleged breaches of the APS Code of Conduct. The Tribunal held the decision to proceed with the Investigation was not unreasonable, but it was not undertaken in a reasonable manner. The Tribunal found the manner in which the Investigation was planned and PKZS was informed about it was not reasonable as it did not take into account relevant information held by the Department in respect of PKZS’s history of domestic violence and related mental health issues. The Tribunal concluded the manner in which the Investigation was undertaken did not meet the threshold of reasonable administrative action in respect of PKZS’s employment as it was not reasonable. Consequently, the Tribunal found the adjustment disorder ‘disease’ was an ‘injury’ for the purposes of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The Tribunal decided Comcare was liable to pay compensation in respect of the injury.

In respect of the aggravation claim, the Tribunal found PKZS experienced stress and some worsening of psychological symptoms as a result of the interview on 10 September 2020. The Tribunal held the interview was reasonable administrative action undertaken in a reasonable manner in respect of PKZS’s employment. The Tribunal found the aggravation did not amount to an ‘injury’ as it resulted from reasonable administrative action undertaken in a reasonable manner in respect of PKZS’s employment. The Tribunal affirmed the decision to refuse compensation for the aggravation.

The Tribunal set aside the decision under review in application 2022/8343 and in substitution decided that Comcare is liable to pay compensation under s 14 of the SRC Act in respect of the adjustment disorder injury PKZS suffered on 7 April 2020. The Tribunal affirmed the decision under review in application 2024/2632. The parties have liberty to make submissions on the issue of costs. If no submissions are made, the Tribunal will order Comcare to pay PKZS’s reasonable costs in application 2022/8343 under s 67(8) of the SRC Act.

Orders