PLBB and Comcare (Compensation) - [2020] AATA 1348

PLBB and Comcare (Compensation) [2020] AATA 1348 (18 May 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2018/1403
GENERAL DIVISION  )
Re: PLBB
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:  Ms S Taglieri SC, Member
DATE OF CORRIGENDUM:            9 June 2020
PLACE:           Hobart

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.That the first sentence of paragraph 24 of the reasons for decision reading “After the meeting on 9 July 2017, Ms LJ issued a letter of expectation to the Applicant” be changed to “Before the meeting on 9 July 2017, Ms LJ had issued a letter of expectation to the Applicant.”

...................[sgd]......................
Ms S Taglieri SC, Member
Division:GENERAL DIVISION
File Number(s): 2018/1403
Re:PLBB
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms S Taglieri SC, Member
Date:18 May 2020
Place:Hobart

The decision under review is set aside and the matter remitted to the Respondent for determination in accordance with these reasons.
........................[sgd]........................
Ms S Taglieri SC, Member
COMPENSATION – whether the Applicant suffered an injury, disease or aggravation of either for the purposes of the Act – liability exclusion – whether the injury or disease resulted from reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment – meaning of administrative action in respect of employee’s employment - decision set aside and matter remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Public Service Act 1999
Cases
Comcare v Reardon [2015] FCA 1166.
Comcare v Stewart [2019] FCA 365.
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21.
Drenth and Comcare [2011] AATA 582.
Drenth v Comcare [2012] FCAFC 86.
Hart v Comcare [2005] FCAFC 16.
Havnen v Comcare [2010] AATA 535.
Keenan v Comcare [2009] AATA 884.
McGee v Comcare [2010] AATA 386.
REASONS FOR DECISION
Ms S Taglieri SC, Member
18 May 2020

The Applicant was a longstanding employee of the Respondent, at relevant times employed at one of its Centrelink Offices.
On 9 October 2017 the Applicant made a claim for worker’s compensation against the Respondent. At this time she was a Service Officer performing customer service duties for many years. In her claim for compensation,[1] she stated that she suffered psychiatric injury, namely an adjustment disorder with anxiety from a series of incidents at the Centrelink Office. Regarding what caused the injury, the Applicant stated “my bullying and harassment claim against Manager was dismissed without the assessor even speaking to me. He seemed to consider that because the letter of expectation was withdrawn then everything was okay. He didn’t look at all the other issues/examples I put.”[2]
[1] T4, pp 21-24, T documents.
[2] T4, p 23, T documents.
On 13 March 2018 the Applicant’s claim for compensation was rejected (the reviewable decision). The grounds for rejection were that although the Applicant suffered…

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 PLBB and Comcare (Compensation)

Details

AGLC: PLBB and Comcare (Compensation) [2020] AATA 1348
Case: [2020] AATA 1348
Decision Date: 18 May 2020

CaseChat Overview and Summary

This matter came before Ms S Taglieri SC, Member, of the Administrative Appeals Tribunal. The applicant, PLBB, sought compensation from Comcare, alleging an injury or disease arising from interactions with her managers between October 2016 and July 2017. These interactions occurred against a backdrop of disagreement and conflict concerning her work performance and the management of customer debts. The applicant had lodged a bullying and harassment complaint against several managers, citing negative reactions to a letter she sent, a loss of trust in her manager, and a refusal to allow mediation.

The Tribunal was required to determine two primary issues. First, whether the applicant suffered an injury, disease, or aggravation of either for the purposes of the relevant Act on or around 31 August 2017. Second, if an injury or disease was established, whether liability was excluded because it resulted from reasonable administrative action taken in a reasonable manner in respect of the applicant's employment.

The Member considered documentary evidence, including the applicant's statement of facts, issues, and contentions, and various emails and documents relating to workplace interactions and investigations. The applicant did not give oral evidence but relied on the tendered documents. The Member noted that while subsection 5A(2) of the Act provides examples of reasonable administrative action, neither party argued that the facts of this case fell within those specific examples. The evidence disclosed a history of progressive interactions and disagreements between the applicant and her managers concerning her work performance and the handling of customer complaints.

The decision was set aside and the matter remitted for redetermination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Accordingly, upon this review, the Tribunal needs to determine:(a)Whether the Applicant suffered an injury, disease or aggravation of either on or around 31 August 2017,[11] for the purposes of the Act; and if so(b)Whether liability is excluded because it resulted from reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment. Although subsection 5A(2) of the Act provides non-exhaustively for what constitutes reasonable administrative action, neither party contended that the facts of this case fell within any of the actions referred to in the subsection.[11] The date the applicant sought medical treatment and was certified incapacitated – T24, T Documents.THE EVIDENCE BEFORE THE TRIBUNAL The Tribunal received the entirety of the section 37 documents and a supplementary set of section 37 documents. These were received collectively as an exhibit marked T1. The Applicant elected not to give oral evidence in chief but relied upon the T documents and a large number of other documents tendered at the hearing.[12] In summary, the documents in evidence disclosed that she had progressive interactions with named managers between October 2016 and July 2017 relating to how she performed her work. The interactions occurred on a background of disagreement and conflict between her and her immediate manager Ms LJ (and later others in the workplace) relating to how complaints about electronically raised customer debts were managed and the Applicant’s work performance. [12] Exhibits A1-A21. Due to the collective interactions referred to at [17], the Applicant made a BHC against her immediate manager, Ms LJ and other managers, Mr BS, Ms LQ and Ms CD.[13] This complaint was made in written form and although undated was made soon after a meeting in July 2017. [13] T 14.20, pp 225 – 242, T documents. The substance of the BHC is not easy to distil, but careful attention to its contents discloses that the Applicant’s complaint was that she was subjected to bullying over the period of October 2016 to July 2017 due to the matters referred to at [17] and – (a)negative reactions from managers, Mr BS, Ms LQ and Ms CD over time arising from a letter she sent to Mr DM;[14] (b)loss of trust in her manager, Ms LJ; and(c)refusal to allow mediation. [14] T14.20, p 225, T documents. Each element of the complaint was expanded upon, but all elements were in some way related to how Ms LJ had managed the Applicant’s work performance in regard to customer complaints about electronically raised debts and a meeting on 9 July 2017. The Applicant tendered into evidence many documents concerning the conduct of investigations in the public service.[15] In addition, her Statement of Facts, Issues and Contentions dated 26 August 2019 was received and she was cross-examined by counsel for the Respondent.[15] Exhibits A1 – A12. Various emails were also tendered into evidence by the Applicant,[16] which recorded the interactions she had with senior personnel of the Respondent, including those who were the subject of her complaint. A bundle of documents from the Applicant in response to a Code of Conduct review concerning her behaviour during and around the meeting on 9 July 2017 was also received in evidence.[16] Exhibits A16 – A20.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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