Purdon and Comcare (Compensation)
[2024] AATA 3493
•16 September 2024
Purdon and Comcare (Compensation) [2024] AATA 3493 (16 September 2024)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2023/3453 GENERAL DIVISION ) Re: David Purdon
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Member W Frost
DATE OF CORRIGENDUM: 24 September 2024
PLACE: Canberra
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.in paragraphs 3(b) and 99, the words “the AFP” be deleted and replaced with “Services Australia.”
...................[SGD]...........................
Member W Frost
Division:GENERAL DIVISION
File Number(s): 2023/3453
Re:David Purdon
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:16 September 2024
Place:Canberra
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
....................[SGD]...................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – section 14 of the Safety, Rehabilitation and Compensation Act 1988 – definition of ‘injury’ under subsection 5A(1) SRC Act – definition of ‘disease’ under subsection 5B(1) – disease suffered by an employee – reasonable administrative action taken in reasonable matter – administrative investigation – exacerbation of condition – liability to pay compensation
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 43
Criminal Code Act 1995
Public Service Act 1999
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5, 7, 14Cases
Bryant and National Australia Bank Ltd [2021] AATA 2769
Comcare v Martinez (No 2) (2013) 212 FCR 272Comcare v Power (2015) 238 FCR 187
Commission for Safety, Rehabilitation & Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Purdon and Comcare [1997] AATA 466
Radulovic and Comcare (2010) AATA 777
Rizkallah and Australian Postal Corporation [1991] AATA 611
Scalzo and Australian Postal Corporation [1991]
Thappa and Comcare [2013] AATA 629REASONS FOR DECISION
Member W Frost
16 September 2024
INTRODUCTION
The Applicant, Mr David Purdon, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by the Respondent, Comcare, declining liability to pay him compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of ‘work related stress, anxiety, emotional break down with physical symptoms’, including ‘abdominal discomfort’, ‘sleep disturbance’ and ‘headache’.[1]
[1] Exhibit 1, pages 1-6.
The Tribunal has considered all documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the additional documents taken into evidence in these proceedings, together with the parties’ submissions.[2] For the following reasons, the Tribunal affirms the decision under review. This means that Mr Purdon’s application to the Tribunal is unsuccessful and Comcare is not liable to pay him compensation under the SRC Act.
[2] Exhibits 1 to 4.
ISSUES
The Tribunal had to determine the following issues in this proceeding:
(a)whether Mr Purdon suffered from an ‘ailment’ or an ‘aggravation of such an ailment’, as defined by subsection 5B(1) of the SRC Act;
(b)if so, whether Mr Purdon’s ‘ailment’ was ‘contributed to, to a significant degree’, by his employment with the AFP, as required by subsection 5B(1) of the SRC Act in order to constitute a ‘disease’;
(c)if so, whether Mr Purdon’s ‘disease’ was suffered as a result of ‘reasonable administrative action taken in a reasonable manner’ in respect of his employment and therefore not an ‘injury’ under subsection 5A(1) of the SRC Act;
(d)whether Mr Purdon has at any time, for purposes connected with his employment, made a ‘wilful and false representation’ that he did not suffer, or had not previously suffered from that ‘disease’, such that it shall not be taken to be an ‘injury’ for the purposes of the SRC Act; and
(e)whether Comcare is liable to pay compensation to Mr Purdon for an ‘injury’ pursuant to section 14 of the SRC Act.
BACKGROUND
Mr Purdon is 62 years old.[3]
[3] Exhibit 1, pages 2 and 67.
In November 2021, Mr Purdon commenced employment with Services Australia as a full-time temporary Service Officer at level 3 in the Australian Public Service (APS).[4]
[4] Ibid., pages 13, 71 and 88.
On 11 April 2022, Mr Purdon submitted a claim for the Australian Government’s Disaster Recovery Allowance (DRA) in relation to the floods in Lismore, New South Wales (NSW), in February 2022.[5] Mr Purdon stated in that claim form that he had a usual place of residence in an area impacted by the flood event, a usual place of work in, or income derived from, an area impacted by the flood, and lost income or a reduction in income as a direct result of the flood event. In addition to noting his full-time employment with Services Australia, Mr Purdon stated that he was ‘self-employed’, operated a ‘home based business’ in ‘[l]egal administration’ and his home had been ‘severely damaged’.[6] Mr Purdon further stated that he was ‘running at a loss of income and will suffer a further loss of income’.[7] In this regard, Mr Purdon claimed that his business’ net income for the eight weeks before the floods was $3,200 and that the estimated net loss between 1 March 2022 and 31 May 2022 was $3,200.[8]
[5] Ibid., pages 26-31.
[6] Ibid.
[7] Ibid., page 29.
[8] Ibid., page 31.
Also on 11 April 2022, Services Australia granted Mr Purdon’s claim for DRA with effect from 1 March 2022.[9]
[9] Ibid., pages 32-33.
On 19 April 2022, Services Australia informed Mr Purdon that he was eligible for the DRA ‘Top-up’, because the relevant Minister had declared the area in which Mr Purdon resided or worked as being ‘significantly affected’ by the flooding.[10]
[10] Ibid., pages 34-35.
On 28 April 2022, Mr Purdon lodged an ‘Outside Employment Application’ with Services Australia in relation to work he was proposing to undertake for the Australian Electoral Commission (AEC) during the Federal Election in May 2022.[11]
[11] Ibid., pages 8-10.
On 31 May 2022, Services Australia informed Mr Purdon that he had ‘received the maximum entitlement’ of DRA and, as a result, it was cancelled from that date.[12]
[12] Ibid., pages 36-37.
On 13 July 2022, Mr Purdon’s supervisor, Mr Jason Drew, requested that he complete and return another ‘Outside Employment Application’ form.[13]
[13] Ibid., page 40.
On 14 July 2022, Mr Purdon submitted an ‘Outside Employment Application’ form which noted that he had no ‘formal engagements with employers’, undertook volunteer work with his father, Mr William Purdon, a solicitor and tax agent, for ‘little to 0 hours’, together with volunteering with NSW Rural Fire Service ‘as required’.[14] On the same date, Mr Drew recommended the application be approved and noted that there was no identified conflict of interest.[15]
[14] Ibid., pages 38 and 40.
[15] Ibid., page 39.
Also on 14 July 2022, an Acting Region Manager at Services Australia emailed Mr Purdon’s completed ‘Outside Employment Application’ form to the email address [redacted] and noted that Mr Drew had ‘discussed the outside employment policy with David Purdon’.[16] The email also stated that ‘David has advised that he has “No formal engagements with employers. Volunteer work with William Purdon Solicitor, Tax Agent (little to 0 hours) and Volunteer with the RFS as required. No identified conflict of interest”’.[17]
[16] Ibid., page 54.
[17] Ibid.
On 13 October 2022, Mr Jason Moore, a Senior Investigator at Services Australia, telephoned Mr Purdon in relation to an investigation into Mr Purdon’s receipt of the DRA and access of his Centrelink customer record.[18] Mr Moore also issued an ‘Opportunity to respond to allegation/s’ letter to Mr Purdon in relation to allegations of potential misconduct in accordance with the APS Code of Conduct as set out in the Public Service Act 1999 and non-compliance with his obligations as a customer of the agency.[19]
[18] Exhibit 3, pages 1 and 68.
[19] Exhibit 3, pages 44-45.
Between 18 October and 2 November 2022, Mr Purdon and Mr Moore corresponded about the allegations and associated investigation.[20]
[20] Exhibit 1, pages 41-45, 52-53, and 55-57.
On 1 November 2022, Mr Purdon was informed that his 12-month non-ongoing contract with Services Australia would not be renewed.[21]
[21] Ibid., page 89.
On 3 November 2022, Mr Purdon attended work but ‘left unwell’ at 11.10am.[22]
[22] Ibid.
On 4 November 2022, Mr Purdon attended on Dr Nay Htet, General Practitioner, who recorded that he was ‘very stress[ed] lately as he has been accused with FRAUD’, he had declared his outside employment with his father’s legal practice and that claim was approved.[23] Dr Htet’s notes further stated ‘David feels that it is an insult to his hones[t]y and becoming a bit stressor for him’, he was ‘not coping well, affecting physically and mentally’ and seemed ‘anxious and agitated’ while talking through his issues.[24]
[23] Ibid., page 11. See also Exhibit 3, pages 101-102.
[24] Ibid.
On 8 November 2022, Dr Htet completed a ‘Certificate of capacity for work’ for Mr Purdon in relation to symptoms or a diagnosis of ‘work related stress, anxiety, emotional breakdown with physical symptoms – abdominal discomfort, diarrhoea, sleep disturbance, headache’.[25] Mr Purdon was certified unfit to work from 4 November 2022 to 21 November 2022.[26] Dr Htet noted that the injury or disease was sustained on 2 November 2022 and caused by ‘[p]atient believe that he was being deceptively and dishonestly attained information to cause harm’.[27]
[25] Exhibit 1, pages 63-64.
[26] Ibid., page 63.
[27] Ibid., page 64.
Also on 8 November 2022, Mr Purdon completed a ‘Workers’ Compensation Claim Form’ in relation to a psychological injury said to have first been noticed on 2 November 2022.[28]
[28] Ibid., page 67.
On 15 November 2022, Mr Purdon’s temporary employment with Services Australia ceased.[29]
[29] Ibid., pages 20 and 89.
On 6 February 2023, Services Australia informed Mr Purdon that the investigation ‘has now been completed and no further action is required’.[30]
[30] Exhibit 3, page 49.
On 16 February 2023, Comcare made a determination declining liability to pay Mr Purdon compensation under section 14 of the SRC, because it was satisfied that the events which were causative of his accepted condition comprised reasonable administrative action conducted in a reasonable manner in respect of his employment and therefore not an ‘injury’ under section 5A of the SRC Act.[31]
[31] Exhibit 1, pages 128-139.
On 17 March 2023, following Mr Purdon’s request for reconsideration, Comcare affirmed its determination declining liability to pay him compensation under section 14 of the SRC Act.[32]
[32] Ibid., pages 140 and 159-170.
On 17 May 2023, Mr Purdon applied to the Tribunal for review of Comcare’s decision affirming the determination declining liability to pay him compensation under the SRC Act.[33]
[33] Ibid., pages 1-6.
LEGISLATION
Subsection 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A of the SRC Act states that:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but 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.
(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. [emphasis in original]
For the purposes of applying subsection 5A(1)(a) of the SRC Act in relation to a ‘disease suffered by an employee’, section 5B of the SRC Act regarding the definition of ‘disease’ states that:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material. [emphasis in original]
Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also provides that ‘aggravation’ includes ‘acceleration or recurrence’.
EVIDENCE
Lay evidence
Mr Purdon
The Tribunal has considered the written statements made by Mr Purdon dated 6 November 2022, 1 January 2023 and 23 July 2024.[34] Mr Purdon confirmed adherence to his three statements in these proceedings.
[34] Exhibit 1, pages 13-57 and Exhibit 3, pages 30-35.
Under cross-examination, Mr Purdon told the Tribunal he completed the workers’ compensation claim himself and accepted that he signed it on 8 November 2022.[35] He agreed that it was true and accurate, but did not necessarily agree that he ‘signed away’ his right to privacy. Mr Purdon said he was aware that it constituted a declaration that the contents of the claim were true and correct.
[35] Exhibit 1, pages 65-70.
Counsel for Comcare referred to Mr Purdon’s negative answer to question 33 in the workers’ compensation claim form regarding whether he had ‘ever experienced a similar symptom, injury or illness, work-related or otherwise’.[36] Mr Purdon told the Tribunal that his answer was ‘true’; he had ‘never experienced a similar injury or illness work-related or otherwise’. He agreed the claimed injury was a psychological condition, however when asked whether he agreed that depression was a psychological condition, Mr Purdon said that he ‘would agree that feeling sad could be described as a psychological condition’. Counsel put to Mr Purdon that when he completed his compensation claim he was aware that he had previously been diagnosed with depression. Mr Purdon told the Tribunal he did not believe that ‘I had ever been treated for depression in the past’.
[36] Ibid., page 68.
As a result, Counsel referred to a doctor’s letter in September 2007 indicating that Mr Purdon had a known background of ‘depression’.[37] Mr Purdon told the Tribunal that he had ‘never’ suffered or been treated for depression. When taken to further clinical records from 2007 to 2010 referring to depression, Mr Purdon repeated his denial that he had ever been depressed or treated for depression.[38] Mr Purdon told the Tribunal that he did not recall telling a doctor in 2010 that he had ‘high levels of anxiety and stress’ and denied making such a statement.[39] He also disagreed that he was suffering from ‘mental issues’, referred to in another doctor’s note from May 2010, although Mr Purdon said he had a ‘great deal of sadness and concern’ about his child’s health.[40] Mr Purdon did not accept that he was, as recorded in clinical notes from October 2010, ‘still very down and depressed’, although this was said to be ‘a period of great concern’ and ‘upset’ regarding his ‘position’, but Mr Purdon again said he was never treated for depression and did not believe he had ever suffered from such a condition.[41] He also denied seeing Dr Chowdhury about depression, but rather for ‘Workcover certificates’.
[37] Exhibit 3, page 494.
[38] Ibid., pages 420-434 and 478.
[39] Ibid., page 577.
[40] Ibid., page 466.
[41] Ibid., page 422.
Counsel referred Mr Purdon to his written contention that the ‘assertion that the Applicant suffered from major, severe or non-insignificant depression is not admitted’ and was asked whether he maintained that position.[42] Mr Purdon again told the Tribunal he had ‘never suffered from depression’, although he had been ‘sad and been upset’, had ‘low moods’ and periods where his mood had ‘been depressed’ and he had been ‘teary’.
[42] Ibid., page 25.
Mr Purdon was taken to a doctor’s letter from January 2010, which stated that he ‘has Major Depression and now seems to be having an Anxiety and Panic disorder’.[43] Mr Purdon told the Tribunal he did not accept that opinion, he ‘never saw’ that doctor and that was the doctor’s ‘opinion’, not a ‘diagnosis’ of depression. When asked for the difference between an opinion and a diagnosis, Mr Purdon said it was ‘not up to’ him, but for a doctor to give such evidence. He was further referred to the doctor’s statement that he was unable to sleep ‘because of his [physical] condition and anxiety and depression’.[44] Mr Purdon repeated his evidence that he had never been treated for, or diagnosed with, depression.
[43] Ibid., page 478.
[44] Ibid.
Mr Purdon agreed that he saw Dr Tanveer Ahmed, Psychiatrist, in October 2013, but said this was because he was ‘very, very sad and upset’ due to family matters. Dr Ahmed’s report opined that Mr Purdon ‘did fit the criteria for either an adjustment disorder with depressed mood or a major depression’, but that it ‘can be considered an adjustment disorder because he attributes it to more recent interactions with the insurance company’.[45] Mr Purdon told the Tribunal that Dr Ahmed did not state which condition he diagnosed, but was ‘opining that it was either one’ of an adjustment disorder or major depression. Counsel then referred to Dr Chowdhury’s clinical notes from December 2013 referring to those two psychological conditions, but Mr Purdon told the Tribunal that he did not accept anything the doctor said; he visited to obtain Workcover certificates.[46]
[45] Ibid., pages 230-231.
[46] Ibid., page 277.
Counsel then referred to the report obtained by Comcare from Dr Frank Varghese, Psychiatrist, in June 2024, which set out a history of Mr Purdon never having sought the opinion of a psychologist or psychiatrist, although he had been referred to one.[47] Mr Purdon agreed and told the Tribunal that he only attended where ‘ordered’ to do so. In this regard, Mr Purdon told the Tribunal that he did not recall whether he saw a psychologist following referrals in April 2010. He was also unaware of a referral from August 2013 and said he had not attended a subsequent psychiatric appointment. Mr Purdon also did not recall informing his general practitioner that he had made an appointment with a psychiatrist for November 2010 or whether he attended such an appointment. In this regard, Mr Purdon confirmed his contention that he had not previously suffered from a psychological disease and referred to a ‘conspiracy’ by Services Australia employees that led to him volunteering information that was ‘used to hurt me’ and to ‘gain a scalp’.
[47] Ibid., pages 50-51.
To that end, Counsel asked Mr Purdon how he had been ‘hurt’ by his employment. He told the Tribunal he had suffered ‘terribly in terms of how I feel’, with multiple ‘physical effects’ such as diarrhoea, upset stomach, sleeplessness, and isolating himself. Mr Purdon said he was not a psychiatrist and would not give an opinion on whether he suffered from a psychological condition, although he relied on his workers’ compensation claim form referring to such an injury. When Counsel put to Mr Purdon that Comcare asserted that he had not divulged in that claim form that he had previously suffered a similar disease, he repeated his testimony that he had ‘never suffered’ or ‘been treated’ for depression.
Mr Purdon was referred to Dr Chowdhury’s letter to Dr Ahmed from 19 August 2013 stating that he ‘has been diagnosed with Depression as a result of chronic back pain after a work place injury [in] 2005’ and requesting ‘a course of action for this patient and review his work related depression’.[48] Mr Purdon told the Tribunal he did not accept what the doctor reported, he was ‘under supervision’, and Mr Purdon ‘never complained’ that he was depressed, although he ‘certainly complained’ that he had ‘low mood’, was ‘very upset’ about his treatment following a family health matter and the ‘uncaring nature’ of the insurance company on that occasion, which left him ‘stunned’.
[48] Ibid., page 301.
Counsel then referred Mr Purdon back to the report of the psychiatrist, Dr Ahmed, from October 2013, in which it was stated that, based on Mr Purdon’s reports, ‘it is reasonable to attribute the cause of his symptoms ultimately related to his work-related injury’.[49] Mr Purdon told the Tribunal that any symptoms he had were ‘physical’ and he had ‘never consulted a psychiatrist’. While Mr Purdon agreed that he saw Dr Ahmed on referral from his general practitioner, he told the Tribunal it was ‘not work-related’ and did not believe he had a psychological condition. As a result, Counsel referred to a letter from Dr Ahmed dated 22 October 2013, in which he said that Mr Purdon ‘presents with increasing distress in relation to a Workers’ Compensation Claim and a previous back injury’, he ‘alleges it is primarily related to his difficult interactions with the insurance company and wants to pursue a psychological claim’.[50] Mr Purdon said he did not recall that correspondence or such a discussion with Dr Ahmed.
[49] Ibid., page 231.
[50] Ibid., page 259.
Mr Purdon agreed that he told Dr Varghese in June 2024 that he cannot tell lies. He did not recall having declined any recommended anti-depressant treatment and did not know whether it had been recommended. Mr Purdon said that Dr Varghese’s written statement, that he had been taking medication for hypertension ‘from the time he had problems with his employment with Centrelink’, was wrong and his medical records indicated that he had been taking blood pressure medication for ‘many years’.[51]
[51] Ibid., page 50.
Mr Purdon agreed that he informed Dr Varghese he had no family history of psychiatric issues. He told the Tribunal that, despite having worked in his father’s legal practice for close to 20 years, he had ‘no knowledge’ that his father started that practice after having been medically retired from the then Australian Securities Commission due to a psychiatric condition and that he had an associated proceeding in this Tribunal.[52]
[52] Purdon and Comcare [1997] AATA 466.
Mr Purdon agreed that he had no complaint regarding, or objection to, the finalisation of his employment contract with Services Australia.[53] However, he also told the Tribunal that he brought an action at Fair Work Australia for unfair dismissal to ‘honour that contract’ in circumstances where he had been rostered on for shifts beyond the end of his contract and believed that he had an obligation to work until that time. That proceeding was unsuccessful because it was found that Mr Purdon had not been dismissed; his employment had simply ended in accordance with the contract.
[53] Exhibit 3, page 25.
Counsel referred to Mr Purdon’s DRA application dated 11 April 2022.[54] When it was put to Mr Purdon that he had no knowledge of what, if any, investigation was undertaken by Services Australia regarding that application, he told the Tribunal that he can ‘read the documents’ and when it said he was successful, he drew an ‘inference’ that they conducted a rigorous investigation into his claim for the DRA. Counsel noted that the application for DRA was submitted on the same date that the DRA was granted and it was again put to Mr Purdon that he did not know what investigation had been undertaken into his eligibility.[55] Mr Purdon said he would expect that there were ‘checks and balances’ for the distribution of government money and believed his application would have been subject to ‘rigour’. He agreed that he was not required to lodge any supporting material with the application for DRA. Mr Purdon said he accepted a Ministerial statement that a top-up payment of DRA was granted solely on the basis that a person resided or worked in an area significantly affected by flood.[56] However, Mr Purdon said he did not recall receiving the letter dated 19 April 2022 outlining this eligibility for the top-up, but accepted its content.[57] Despite this, Mr Purdon did not accept the proposition that a person received the top-up payment if they lived or worked in the affected area and there was no further rigorous testing to determine eligibility for the top-up, although he accepted the Minister’s statement.
[54] Exhibit 1, pages 26-31.
[55] Ibid., pages 32-33.
[56] Ibid., page 34.
[57] Ibid.
Mr Purdon told the Tribunal that he was not aware of Services Australia’s outside employment policy requiring approval of all outside employment. Before his DRA application in April 2022, Mr Purdon said he informed his supervisor that he was offered work with the AEC for the Federal Election in May 2022 and sought approval to undertake that work. Mr Purdon said he was told to apply through completion of an Outside Employment Application. It was approved, and he worked full-time for a number of weeks with the AEC.
Counsel put to Mr Purdon that he did not apply for outside employment approval in relation to his father’s legal practice because it was undertaken outside of the hours he worked at Services Australia. He told the Tribunal that he worked for his father for the last 20 years, when he commenced employment with Services Australia he informed his supervisor, Mr Drew that he was continuing that work and it was accepted. Mr Purdon agreed with Mr Drew’s written statement that, after Mr Purdon commenced employment in November 2021, he informed Mr Drew about his outside employment with his father’s legal practice and volunteer work, but that Mr Drew did not require Mr Purdon to complete an outside employment form at that time.[58]
[58] Exhibit 1, page 93.
It was put to Mr Purdon that he became aware of Services Australia’s investigation into his receipt of DRA when he was contacted by telephone on 13 October 2022 and that call from Mr Moore was not an interview, but initial contact regarding the investigation and conveyed an offer to attend an interview at a later date or, alternatively, to provide a written statement. Mr Purdon disagreed. He was referred to a Services Australia file note which stated that contact was made with him via phone on 13 October 2022, the allegations were discussed, and Mr Purdon ‘advised likely to respond in writing’.[59] Mr Purdon disagreed with the accuracy of the file note and said Mr Moore had wanted a ‘verbal reply’ on 13 October 2022 and Mr Purdon refused.
[59] Exhibit 3, page 43.
Counsel then referred to a letter from Mr Moore to Mr Purdon dated 13 October 2022 setting out the allegations against him and providing Mr Purdon with an opportunity to respond by either an interview or in writing.[60] Mr Purdon told the Tribunal that he did not believe he had ‘ever seen’ that letter and subsequently said that he was ‘certain’ he had not received it. Mr Purdon also did not believe his reference in an email to Mr Moore on 18 October 2022 to ‘your time frame to respond’ was taken from Mr Moore’s letter of 13 October 2022.[61] Mr Purdon said he ‘only had’ contact with Mr Moore by email and was told during their telephone discussion that he ‘needed to respond’ by 24 October 2022. Mr Purdon also denied receiving the letter of 13 October 2022 after that telephone contact on the same date. He further stated that Mr Moore did not inform him that the matter may be referred to the ‘Conduct and Reviews Team’ at Services Australia, his responses may be used as evidence or that an interview was voluntary; as it had ‘already taken place by the time this letter would have arrived’. It was put to Mr Purdon that he did not consent to an interview. Mr Purdon told the Tribunal that he spoke to Mr Moore, he was not cautioned, but ‘threatened’ and not provided with an opportunity to seek legal advice. Counsel put to Mr Purdon that there were no threats made to him by Mr Moore. Mr Purdon said ‘he did’. It was also put to Mr Purdon that there was nothing in his written statement about being threatened with gaol. In response, he told the Tribunal that people were conspiring to ‘obtain information fraudulently’ from him.
[60] Ibid., pages 44-45.
[61] Exhibit 1, page 41.
Counsel for Comcare referred to Mr Purdon’s ‘Submissions Seeking Relief’ document dated 30 November 2023, which stated that Mr Moore said Mr Purdon would face possible criminal charges, resulting in a sentence of 12 years’ gaol, or at a minimum a lifetime ban from the APS.[62] Mr Purdon accepted that was stated in the document. He was then referred to his ‘Statement of Evidence in Response’ document from July 2024, in which it was stated that he ‘specifically’ recalled that Mr Moore said he ‘could face a penalty of up to 9 years in jail’.[63] Mr Purdon accepted that he wrote that statement. Counsel also took Mr Purdon to his Statement of Facts, Issues and Contentions which referred to Mr Moore threatening him with ‘up to 8 years in gaol’.[64] Mr Purdon told the Tribunal that this was a ‘mathematical error’. It was therefore put to Mr Purdon that he had variously claimed to have been threatened during that conversation on 13 October 2022 with seven, eight, nine and 12 years’ gaol. Mr Purdon told the Tribunal that he was ‘well and truly’ out of his ‘comfort space’ and at the time of writing it was done to the best of his recollection, but said that he was threatened with a lengthy incarceration. Counsel suggested to Mr Purdon that Mr Moore did not make any threat or tell him that it was a criminal investigation. Mr Purdon maintained that Mr Moore did make the alleged threats and said that it was a criminal investigation.
[62] Exhibit 5.
[63] Exhibit 3, page 35.
[64] Ibid., page 23.
In relation to the letter from Mr Moore to Mr Purdon dated 13 October 2022, which referred to the allegations relating to potential misconduct under the APS Code of Conduct and non-compliance with his obligations as a customer of Services Australia, Mr Purdon told the Tribunal that he did not ‘accept that letter’, because there was ‘no timeframe that letter was penned’ and he knew ‘nothing’ about the letter.[65] He would not agree that the letter was sent to his postal address, although he agreed it was correctly addressed.
[65] Exhibit 3, pages 44-45.
Counsel put to Mr Purdon that Mr Moore relied on the fact that Mr Purdon had not, before receiving the DRA, applied for approval of relevant outside employment, whereas the DRA required the loss of income from work other than his employment with Services Australia. In response, Mr Purdon said that his supervisor knew he was working for his father and assisting him ‘wind-up’ his legal practice.
Mr Purdon was referred to an email from Mr Moore to him dated 18 October 2022, which noted the letter of 13 October 2022 and the allegations contained therein regarding potential misconduct with the APS Code of Conduct and non-compliance with Mr Purdon’s obligations as a customer.[66] Mr Purdon told the Tribunal that he had ‘no idea what he was referring to’ because he had not received that letter. It was put to Mr Purdon that he did not respond to Mr Moore’s email by telling him that he did not receive the letter of 13 October 2022. Mr Purdon questioned whether he needed to do so. He maintained that Mr Moore did not inform him during their discussion on 13 October 2022 that the investigation was administrative and said that ‘he threatened me’. As a result, it was put to Mr Purdon that he did not respond to Mr Moore and challenge what he was told during that discussion. Mr Purdon told the Tribunal that there was ‘no need for me to respond to that aspect of the interview’, it was not the first time he had been threatened by someone. He did request, by letter dated 25 October 2022, the specific legislation to better understand the allegations, together with ‘better and further particulars’.[67]
[66] Exhibit 1, page 42.
[67] Ibid., pages 43-44.
Counsel for Comcare referred to Mr Moore’s response by email dated 2 November 2022, in which he stated that ‘at no point was a confrontational approach to this matter sought’ and that he accepted Mr Purdon’s access of his customer record ‘appears to be a genuine mistake’ and ‘no further action will be taken’.[68] Mr Purdon disagreed that Mr Moore was not confrontational, but accepted that no further action was taken regarding the issue of Mr Purdon accessing his customer record.
[68] Ibid., pages 52-53.
Counsel further referred to Mr Moore’s statement in the email of 2 November 2022, that:[69]
As I stated in my email date 18 October 2022, a review of agency records did not identify you had previously discussed or sought approval of any outside employment prior to the February 2022 flood event.
[69] Ibid., page 53.
Mr Purdon told the Tribunal the statement regarding not having sought approval for outside employment before the flood event was ‘not true’. When Counsel put to Mr Purdon that the records indicated there had been no request for outside employment, he told the Tribunal that he made such a request to his supervisor, Mr Drew, who knew Mr Purdon was working outside Services Australia, including ‘during my lunchbreaks’ when he undertook ‘a number of jobs’. He said that he made a ‘verbal application’, he was not required or told to make a formal application and his employer knew he was working outside the agency. Mr Purdon agreed that if there was no formal note made of this verbal application then he had not made a formal written application for outside employment, but said that he was not required to complete such a form. Counsel put to Mr Purdon that he did not tell Mr Moore that he was not required to make a formal application because his manager was aware of his outside employment and did not require a formal application. In response, Mr Purdon said he did not think he ‘had to’ and believed that Mr Moore was ‘wrong’ because he had told Mr Drew what he was doing; he made an application, spoke with Mr Drew who was ‘well aware’ of Mr Purdon’s outside work. Mr Purdon asserted that Mr Moore used the July 2022 Outside Employment Application form, which ‘had nothing do to with’ the earlier DRA application in April 2022 and that information was ‘used retrospectively to hurt me’.
Mr Purdon agreed that his ABN was cancelled on 15 May 2022 when he was still in receipt of the DRA. He told the Tribunal that during that period there was no telephone, email, power or mail and he ‘did not receive that information’; ‘a vast amount of information was lost in the floods’. He was unaware until this proceeding that it had been cancelled and ‘the ABN number doesn’t exclude me from being able to act as an independent contractor’ or ‘preclude me from doing any outside work’. When it was put to Mr Purdon that that might have been a reasonable explanation, but he had not advanced it to Mr Moore, he replied that he had ‘no knowledge of it until Mr Moore raised it’, he had already ‘accused me of fraud and threatened to gaol me’ and ‘I’m entitled to respond to these in the manner I see fit’.
Mr Purdon agreed that he sent an email to Mr Moore on 18 October 2022 requesting procedural fairness and ‘your detailed and evidenced allegations’ and noting the ‘time frame to respond as being prior to cob 24th October 2022’.[70] He also agreed to receiving Mr Moore’s email of 18 October 2022, which repeated the two allegations and the source of the potential breach, being potential misconduct with the APS Code of Conduct and non-compliance with his obligations as a customer of the agency, and noted his preference to provide a written statement responding to the allegations. Mr Purdon subsequently said that the potential misconduct related to the allegation of improper access of his customer record and the non-compliance with his obligations as a customer related to his DRA claim.[71] Mr Purdon agreed that he was offered further time to respond to the allegations and agreed that email was not combative or threatening, but ‘quite professional’.
[70] Ibid., page 41.
[71] Ibid., page 42.
Mr Purdon agreed that he replied to Mr Moore on 25 October 2022, which set out a detailed explanation of the inadvertent access of his customer record.[72] Mr Purdon told the Tribunal he was aware of Mr Drew’s written evidence that he did not say he would record the outside employment arrangement in a register.[73] Mr Purdon said there was a ‘misunderstanding’, but disputed that he was told to expect a call regarding the matter.
[72] Ibid., pages 43-45.
[73] Ibid., page 94.
Mr Purdon accepted that, unlike the customer record issue, in his letter of 25 October 2022, he provided no explanation regarding his claimed eligibility for the DRA, but had requested ‘better and further particulars’ about that allegation. He said Mr Moore’s subsequent email of 2 November 2022 setting out the allegations in further detail ‘speaks for itself’.[74] Counsel referred to Mr Moore’s offer in that email for Mr Purdon to contact other officers of Services Australia if he had concerns about Mr Moore’s ‘method of enquiry’ and that provision of any written statement was voluntary, but if he wished to do so that should be done by 9 November 2022.[75] Mr Purdon told the Tribunal the offer ‘held no currency with me’ because of their telephone call on 13 October 2022 during which, he claimed, Mr Moore said he would ‘face prosecution and possible gaol time’ and, if not, a lifetime ban from the APS.
[74] Ibid., pages 52-53.
[75] Ibid., page 53.
Mr Purdon confirmed that he ‘chose not to’ contact the other officers regarding any issue with Mr Moore’s investigation and, on 2 November 2022, he emailed Mr Moore requesting ‘at least 7 working days’ to respond and for a ‘release from my allocated duties’ to do so, because it was ‘a workplace inquiry’ and the timeframe to respond conflicted with his work duties.[76] He did not accept that he had earlier been provided seven days to respond, but also said he did not believe there was enough work time to respond to Mr Moore’s enquiries and he was not provided with seven ‘working days’ to respond.[77] Later on 2 November 2022, Mr Moore confirmed that he could not release Mr Purdon from his work duties, but provided him with ‘an extension of 10 working days to CoB 16 November 2022’ to consider his response to the allegations.[78] Mr Purdon told the Tribunal he considered that further time was inadequate because his contract ended before 16 November 2022 and he would not be employed by that time. Mr Purdon confirmed that his position was that he was not required to respond outside work hours because he ‘wasn’t paid to, it was a workplace inquiry’. It was put to Mr Purdon that he still had nine working days to provide any response before his contract ended, which was two more working days than the seven he had requested. In response, Mr Purdon said that, at work, he had work duties to perform which did not allow for ‘any other activities’. Mr Purdon said he did not seek leave from work in order to provide a response because he was ‘entitled to privacy’; it was a ‘private matter’ and he had asked Mr Moore for a release.
[76] Ibid., page 55.
[77] Ibid., page 53.
[78] Ibid., page 56.
Mr Purdon was referred to a further email he sent to Mr Moore on 2 November 2022, stating that he cannot both respond to the allegations and complete his work.[79] He could not remember whether he worked until the end of that day’s shift. Mr Purdon accepted that he attended work on 3 November 2022, but signed out at 11.10am and left unwell. He could not recall whether he worked on the following date, but he did attend his general practitioner on 4 November 2022 and made his claim for workers’ compensation on 8 November 2022.[80]
[79] Ibid., page 57.
[80] Ibid., pages 65-70.
Counsel referred to Mr Purdon’s written statement of 6 November 2022 accompanying that claim and put to him that none of his responses in that document addressed the questions asked of him contained in an attachment to the email from Mr Moore on 2 November 2022.[81] Mr Purdon said that those were his answers and disagreed that he did not address the questions regarding his eligibility for the DRA. Counsel referred to Mr Purdon’s final statement in his response that ‘Mr Moore conspiring with others to procure illegally the Outside employment form in my view has caused me great harm necessitating me attend my local doctor’.[82] Mr Purdon told the Tribunal that was his ‘genuine feeling, that’s how I feel’. He ‘became aware of the conspiracy’ upon learning that the request for him to complete an outside employment form had been made by the fraud team at Services Australia and related to his eligibility for DRA. Counsel asked whether Mr Purdon considered there was something untoward in not being told why he had been asked to complete that form at the time. Mr Purdon said it was ‘quite the opposite’ and he asked why he was required to fill in the form and was told ‘because everyone has to do it’. It was put to Mr Purdon that he did not refer to any conspiracy in his correspondence to Mr Moore on 2 November 2022. Mr Purdon told the Tribunal that there was a lot he did not say to Mr Moore, he ‘said what it is I believe I needed to say’. It was also put to Mr Purdon that he did not mention anything about any shock or psychological impact from receiving the document from Mr Moore. He told the Tribunal that it was ‘not the appropriate arena’ to discuss his medical position, but stated that he had told his doctor that a conspiracy was the cause of his condition. However, when it was put to Mr Purdon that his doctor had recorded the alleged fraud, but not any conspiracy, he said it was not ‘pertinent’ or ‘relevant’ at the time of his interview with the doctor.
[81] Ibid., pages 13-25.
[82] Ibid., page 25.
Mr Purdon told the Tribunal the outside employment form was used to ‘prejudice’ him in their allegation of fraud. He contended that he was ‘lied to’, and told he had to complete the form and the information contained in that completed form was ‘applied retrospectively’ to a matter that occurred three months beforehand. In this regard, Mr Purdon said ‘they were fishing for information’.
Counsel for Comcare put to Mr Purdon that the accusation that he dishonestly obtained the DRA, rather than any ‘conspiracy’ for him to complete the outside employment form, caused his adverse reaction. Mr Purdon said they were ‘one and the same’ and it was a ‘huge shock’ to think his colleagues had ‘conspired’ to bring about his ‘conviction’ based on ‘false and misleading accusations’. Counsel asked Mr Purdon whether he was aware that Mr Drew’s evidence was that Mr Purdon did not ask him why the outside employment form was required. In response, Mr Purdon said he was not responsible for that evidence and had ‘no reason’ to enquire with Mr Drew as to why the form was requested. It was put to Mr Purdon that he did not raise any queries about completion of the form in the email correspondence, with Mr Drew attaching that completed form in mid-July 2022.[83] Mr Purdon told the Tribunal that he had ‘no idea’ about the fraud investigation and had received ‘no caution’ in relation to that investigation. He had previously completed an outside employment form at the instigation of Mr Drew regarding work with the AEC and said that he did ask why this subsequent form was required and was told that ‘everyone has to do it’.
[83] Ibid., page 40.
Counsel asked Mr Purdon why he did not explain to Mr Moore the circumstances of his engagement with his father’s legal practice at the time of his application for DRA, and up until that payment was cancelled in May 2022. He told the Tribunal he was not obligated to tell Mr Moore ‘everything’ about his life. In response to Counsel’s suggestion that, as with the customer record issue, Mr Moore may have accepted an explanation advanced by Mr Purdon in relation to the DRA payment, he said that Mr Moore had ‘threatened’ him with prosecution, gaol and a ‘lifetime ban’ from the APS. Mr Purdon considered this a ‘serious, serious accusation’ and therefore he treated the allegations with ‘the serious respect it deserved’.
Mr Purdon again told the Tribunal that he had ‘no objections’ to Services Australia not renewing his 12-month employment contract and did not ‘have a problem’ with being told on 1 November 2022 that it would not be renewed after it ended on 15 November 2022.[84] He has not worked since the end of his contract with Services Australia.
[84] Ibid., page 16.
Counsel put to Mr Purdon that it would have been a simple matter, in order to demonstrate his eligibility for the DRA, to provide Mr Moore with any financial documents, including receipts, invoices, tax records or bank statements to establish that prior to the flood he was earning the money that he had indicated in his DRA application but was no longer earning as a result of the flood. Mr Purdon told the Tribunal that Mr Moore did not ask for that information and he ‘wasn’t about to volunteer it’. As a result, Counsel put to him that such material was requested by Mr Moore. In response, Mr Purdon said that he asked Mr Moore for ‘better and further particulars’ and these were ‘never provided’. It was therefore put to Mr Purdon that he took the view that any request for proof of his eligibility for the DRA was an affront and Services Australia was not entitled to ask him to establish that eligibility. He did not agree with that proposition.
Mr Jason Moore
The Tribunal has considered the written statement of Mr Moore dated 4 July 2024, which relevantly stated that:[85]
I recall that I was instructed to conduct an investigation in relation to alleged internal fraud that concerned Mr David Purdon, as an APS 3 employee in Services Australia’s Lismore Office.
There were two aspects to the investigation being:
(a) Unauthorised access to Services Australia’s Centrelink system, with the [sic] Mr Purdon accessing his own record; and
(b) Mr Purdon’s application for Disaster Recovery Allowance.
[85] Exhibit 3, pages 67-70.
Unauthorised Access
In relation to the first aspect of the investigation being the unauthorised access, I am aware from Customer Record Access Monitor report’s available to me at time, that Mr Purdon had entered his Customer Reference Number (CRN) into Services Australia Centrelink system on 25 August 2022 then immediately left the record.
I had [discussed this] with Mr Purdon on 13 October 2022, where Mr Purdon indicated he had entered his CRN into Services Australia Centrelink system inadvertently because he had written his own CRN on his notepad from a previous interaction with Services Australia as a ‘staff as customer matter’.
I recall at the time Mr Purdon provided me with a copy of his note pad as evidence.
In considering the evidence available to me including the CRAM reports and a copy of Mr Purdon’s note pad, I was of the view that this access and use [of] Services Australia’s Centrelink system to be [a] genuine mistake, rather than potential employee misconduct.
I was satisfied no further action was required and advised Mr Purdon of this in an email dated 2 November 2022.
Application for Disaster Recovery Allowance
Internal Intelligence is responsible for detecting misconduct [by an] employee or fraud within Services Australia. In certain circumstances, where an employee claims or receives a payment, it can trigger an intelligence analyst to review the circumstances and where warranted refer the matter to the internal investigations section to investigate.
I understand that in the circumstances of Mr Purdon’s application and receipt of a Disaster Recovery Allowance (DRA) a ‘detection’ had occurred which initiated a review by the Internal Intelligence section. As a result of that review, a referral for Mr Purdon’s DRP [sic] was made to the Internal Investigations section.
I recall seeing an email as part of the Internal Intelligence referral to Internal Investigations that Mr Purdon had previously declared no outside employment to the Lismore Service Centre site management.
I recall the circumstances of Mr Purdon’s DRA which had been submitted after the 2022 Lismore floods, and submitted a claim for loss of income Australian Business Number (ABN) 83858072839 stating Mr Purdon’s business had:
(a) Legal administration self-employment income was directly impacted by the flood/s on 1 March 2022.
(b) Operated a home business and machinery and/or tools were lost or damaged
(c) Bookings for business were cancelled due to the disaster
(d) Net business income for the eight weeks immediately before the floods was $3,200
(e) The estimated loss for the period 1 March 2022 to 31 March 2022 was $3,200 as a result of the disaster event.
I recall while conducting preliminary enquiries into this matter that I had requested information from the Australian Taxation Office (ATO), which identified Mr Purdon had not declared any income to the ATO that would further lead me to believe services were not being provided.
I recall conducting searches of the Australian Business Register which identified Mr Purdon’s ABN was cancelled on 17 May 2022, prior to the relevant DRA ‘top-up’ periods concluding.
I contacted Mr Purdon on 13 October 2023 by way of telephone. I indicated to Mr Purdon that the purposes of the investigation was administrative and was not a criminal investigation. I recall the Applicant was receptive and listening to the information discussed.
I provided Mr Purdon an ‘Offer to respond to allegations’ letter which offered Mr Purdon an opportunity to participate in an interview or provide a written response to the allegations…
My experience and approach with employee investigations was not combative and in all cases I would offer Services Australia employees the use of the Employee Assistance Program (EAP) which was a free, professional and confidential counselling service as detailed in the ‘Offer the respond to allegations’ letter sent to Mr Purdon on 13 October 2022. [emphasis in original]
Comcare called Mr Moore to give evidence at the Tribunal hearing and he confirmed adherence to his written statement. At the relevant time, Mr Moore was employed by Services Australia as a Senior Investigator in its Internal Investigations Branch. He had carriage of the investigation in relation to Mr Purdon.
Counsel referred Mr Moore to his telephone conversation with Mr Purdon on 13 October 2022. He denied threatening Mr Purdon with criminal charges, the possibility of a gaol term or a possible ban from APS employment for life or any other period.
Mr Moore told the Tribunal that he had no doubt that the letter addressed to Mr Purdon dated 13 October 2022 was sent to him and done so by post to the address listed in that letter and to the personal email address provided by Mr Purdon.[86] It was emailed to ensure that Mr Purdon had ‘as much time as possible to review the allegations and provide an appropriate response’.
[86] Ibid., pages 44-45.
Mr Moore recalled their conversation on 13 October 2022, and said it was ‘quite short’ and ‘to the point’. Mr Purdon was ‘receptive’ while Mr Moore outlined the allegations. Mr Moore confirmed that he invited Mr Purdon to either participate in an interview or to provide a written statement in response to the allegations. The telephone call was not intended to constitute an interview with Mr Purdon. Mr Moore told Mr Purdon during that call that the letter of the same date would stipulate the timeframe for a response.
Mr Moore told the Tribunal that he did not request that Mr Purdon complete a form for outside employment in July 2022 and did not know the officer, Mr Drew, that made the request. He was unaware of whether someone else from the Internal Investigations Branch made such a request, but believed that when the case was ‘detected through the Internal Intelligence section’ it may have triggered a conversation about Mr Purdon’s outside employment and ‘may have sparked a request’ for the completion of the form, but he had no knowledge of any such discussions. Mr Moore confirmed that this occurred before he was involved in the investigation and was part of how the matter progressed to investigation. In this regard, an intelligence analyst would look at ‘all aspects’ of the matter, such as whether Mr Purdon was eligible for the DRA due to outside employment.
Counsel put to Mr Moore that, when Mr Purdon was asked to complete the form in July 2022, he was not still in receipt of the DRA. Mr Moore told the Tribunal that Mr Purdon’s completion of the form did not assist him in his investigation, because the form did not specify an end date for any outside employment, however Mr Moore assumed a person would disclose outside employment to the agency before receiving the DRA.
Mr Moore confirmed that he would have taken into account in his investigation Mr Purdon’s claim that he was not asked or required to complete an Outside Employment Application form before the flood in February 2022. In this regard, Mr Moore confirmed that he relied on his understanding that Mr Purdon had not completed a formal written application before the flood in February 2022.
Mr Moore also said that it would have been relevant to his investigation that Mr Purdon’s testimony was that he was unaware his ABN was cancelled during the time he was in receipt of the DRA, because after the flood event there was a hiatus in him receiving material and he was also not required to have an ABN because he was not charging GST for work or required to do so.
Counsel referred to Mr Moore’s enquiries with the ATO and the information that Mr Purdon had not declared any relevant income, which income would have led him to believe Mr Purdon was working prior to the flood. Mr Moore said it ‘absolutely’ would have assisted if he was provided by Mr Purdon with other documentary evidence of such income. In this regard, Mr Moore told the Tribunal that, if Mr Purdon had been forthcoming with such information, Mr Moore was of the view that Mr Purdon was in a flood affected area and he would have concluded his enquiries if Mr Purdon could demonstrate he was operating a business and the disaster affected that business to the effect claimed. Mr Moore confirmed that during his investigation, other than denying any wrongdoing, Mr Purdon did not provide any evidence of his eligibility for the DRA.
Under cross-examination, Mr Moore told the Tribunal that he would have discussed the investigation with his then supervisor, Mr David Dowling. Such an assignment comes in an email with a unique identification number and Mr Moore could have then conversed with Mr Dowling. Mr Moore was unsure of when the investigation was assigned to him and did not enquire about that matter with Mr Dowling before Mr Moore made his written statement in this proceeding.
Mr Purdon’s representative referred to an email dated 14 July 2022 regarding his client’s completion of an Outside Employment Application form.[87] Mr Moore told the Tribunal the email was not sent to him at that time, but may have been part of a package of material provided for the investigation. The outside employment form was provided to Mr Moore at some stage, but he disagreed that it was ‘central’ to his investigation.
[87] Exhibit 1, page 54.
Mr Moore was asked whether he relied on Mr Purdon’s Outside Employment Application form completed on 14 July 2022 to determine that Mr Purdon may have committed fraud in relation to the DRA.[88] Mr Moore recalled the document and said that he was unsure of Mr Purdon’s outside employment arrangements, but the document led him to believe that Mr Purdon was not engaged in any such employment other than in an unpaid capacity. Mr Moore agreed that he relied on the contents of the statement in relation to whether Mr Purdon improperly accessed the DRA.
[88] Ibid., pages 38-39.
Mr Moore was asked whether he accepted that the outside employment document from July 2022 was not relevant to Mr Purdon’s financial circumstances in April 2022 when he applied for the DRA. Mr Moore told the Tribunal that the document was not the only consideration when assessing Mr Purdon’s eligibility for DRA. He reviewed taxation records, conducted other inquiries, and said it was ‘inconclusive’ whether Mr Purdon was operating a business at the time of the disaster event in the affected area. That is, Mr Moore said, he was unable to identify evidence through open source documents of Mr Purdon operating a business, therefore he relied on that outside employment document to consider that Mr Purdon may not have been eligible at the relevant time for the DRA. Mr Moore told the Tribunal that one of the primary purposes for the ‘administrative’, not criminal, investigation was to determine Mr Purdon’s eligibility for the DRA.
It was again put to Mr Moore that, in his conversation of 13 October 2022, he said that Mr Purdon may face a period of imprisonment. Mr Moore disagreed and also denied telling Mr Purdon that he may be banned from APS employment for life. Mr Moore was asked whether he accepted that someone receiving an email from the ‘Fraud Control & Investigations Division’ of Services Australia may believe they were being investigated for fraud. Mr Moore told the Tribunal the Division had ‘a number of responsibilities’ and his enquiries were ‘focused from an administrative perspective’ and were ‘not centred around any criminality at that stage’.
Mr Moore did not believe he made enquiries with Mr Purdon’s supervisor regarding his employment when Mr Moore commenced the investigation, including any outside employment. He may have spoken to the supervisor, Mr Drew to arrange a time to conduct the telephone call on 13 October 2022, but did not recall speaking to him about Mr Purdon’s outside employment. Mr Moore was asked whether that may have assisted his investigation. He told the Tribunal that he was led to believe that the declaration on the outside employment form was true and correct and he would assume that ‘someone that was running their own business’ would put that in a declaration of outside employment.
Mr Moore agreed with the proposition that any reliance on a document from July 2022, in respect of an investigation of what occurred in April 2022, was not fair to a person being investigated, but said it was ‘not the only document’ he relied upon in making enquiries and offered Mr Purdon the opportunity to respond to the allegation and demonstrate his eligibility for the DRA. He also relied on the cancellation of Mr Purdon’s ABN in May 2022. Mr Moore did not believe it was necessary for Mr Purdon to maintain an ABN, but its cancellation was ‘another indicator’ that Mr Purdon was ‘possibly’ not eligible for the DRA. This was because he had not disclosed any outside employment in the form completed in July 2022, the ABN was cancelled shortly after his DRA application and Mr Moore could not establish from any other external sources that Mr Purdon was running a business and suffered a loss as a result of the flood as specified in his DRA application.
Mr Moore agreed that his task was to investigate and gather evidence and to ascertain whether Mr Purdon’s declaration for the DRA was true and correct. Mr Moore told the Tribunal that the enquiries he made regarding Mr Purdon’s business operations used certain tools to assess taxation records, Australian Securities & Investments Commission records, and open source searches, for example whether Mr Purdon was a sole trader operating a business in the area around the time of the disaster event. Mr Purdon’s representative asked whether these enquiries included a business operating somewhere else in Australia. Mr Moore said that the business would need to be affected in the disaster area and he believed that the DRA application required a declaration regarding that location and property damage to business. It was put to Mr Moore that Mr Purdon was assisting his father based in Sydney from Mr Purdon’s residence in the disaster area. Mr Moore told the Tribunal that information would have been ‘really handy’ to know at the time he asked Mr Purdon for information to establish his eligibility for the DRA and considered that ‘we wouldn’t be here’ if he had done so.
Mr Moore’s evidence was that Services Australia’s ‘Internal Intelligence’ was responsible for detecting internal fraud or misconduct and the receipt by an employee of a social security payment ‘can trigger an intelligence analyst to review the circumstances and where warranted refer the matter to the internal investigations section to investigate’.[104] He was tasked with conducting the investigation into Mr Purdon. Mr Moore made preliminary enquiries, which identified that Mr Purdon had not declared any relevant outside employment during the period in which he received the DRA, the available ATO information disclosed that he had not declared any income other than from Services Australia in that time, and his ABN was cancelled in May 2022 prior to Mr Purdon receiving the DRA top-up payments. Moreover, the Outside Employment Application completed in July 2022 indicated that Mr Purdon was not earning any income external to Services Australia.
[104] Exhibit 3, page 68.
Mr Moore told the Tribunal that these factors were not determinative in considering that Mr Purdon did not earn any income outside of his employment with Services Australia at the time of his receipt of the DRA and was therefore ineligible for that payment. In that regard, the Tribunal accepts that Mr Moore did not rely solely on Mr Purdon’s completed Outside Employment Application form from July 2022 to conduct his investigation or to make any conclusions about Mr Purdon’s eligibility for the DRA in or around April 2022 when he applied for that payment. As Mr Moore told the Tribunal, that document led him to believe that Mr Purdon was not operating a business, but it was not conclusive in order to make such a determination and, if he had done so, a debt would have been raised against Mr Purdon for the DRA monies.
Having found that the administrative action was reasonable, the Tribunal must also be satisfied that it was taken in a reasonable manner. There is no standard of perfection required, or a finding that it could have been better carried out. In Thappa and Comcare [2013] AATA 629, a differently constituted Tribunal found that, while aspects of an employee’s performance review process could have been improved, the actions taken to address the employee’s underperformance were reasonably undertaken.[105] The actions must be taken in an objectively reasonable manner.
[105] At [77]. See also Comcare v Martinez (No 2) (2013) 212 FCR 272 at [81].
To commence the engagement with Mr Purdon regarding the investigation, Mr Moore arranged with Mr Purdon’s supervisors to telephone him at work. That call occurred on 13 October 2022. While some other method of communication could have been used to initiate contact or facilitate a suitable time for that first discussion, some form of first contact was required to be made with Mr Purdon in relation to the investigation, and it is axiomatic that the initial contact could not be preceded by any prior warning or notice of that initial contact. The Tribunal accepts that the telephone call between Mr Purdon and Mr Moore on 13 October 2022 was not an interview for the investigation, but was merely the preliminary contact by the investigator to inform Mr Purdon of the investigation, the attendant allegations and the subsequent process. A contemporaneous Services Australia file note recorded that contact had been made with Mr Purdon via telephone on 13 October 2022, the allegations were discussed, and he was ‘likely to respond in writing’ and would ‘await letter prior to discussing allegations’.[106]
[106] Exhibit 3, page 43.
On the same date, Mr Moore followed up the telephone call by sending a letter to Mr Purdon’s postal and personal email addresses, the latter at his request, which was consistent with Mr Moore’s evidence.[107] The letter set out the allegations that Mr Purdon ‘provided false and/or misleading statements in your Australian Government Disaster Recovery Allowance claim regarding lost work/income from self employment’ and ‘searched for and attempted to access your Centrelink customer record’.[108] It also stated that the allegations related to potential misconduct in accordance with the APS Code of Conduct, as set out in the Public Service Act 1999, and non-compliance with obligations as a customer of Services Australia.[109] Furthermore, the letter dated 13 October 2022 provided Mr Purdon with the opportunity to respond to the allegations by participating in an interview by telephone or to provide a statement in writing and to make contact by 24 October 2022.[110] As the letter stated, the purpose of affording Mr Purdon the opportunity to respond to the allegations was to ‘clearly establish the circumstances regarding the matter and to give you an opportunity to explain what occurred’.[111] All of those matters accord with the contemporaneous file note made by Services Australia regarding the telephone call between Mr Purdon and Mr Moore and the latter’s evidence in relation to the nature and content of that call, including the foreshadowed next step in the investigation of sending a letter to Mr Purdon further outlining the allegations and providing an opportunity for him to respond either by way of an interview or written statement.
[107] Ibid., pages 44-45.
[108] Ibid., page 44.
[109] Ibid.
[110] Ibid., page 45.
[111] Ibid., page 44.
The Tribunal does not accept Mr Purdon’s evidence that he did not receive the letter from Services Australia dated 13 October 2022 on or around that date. Mr Moore gave evidence that he sent that letter to Mr Purdon by both post and to his personal email address, the latter being a form of communication specifically requested by Mr Purdon during their telephone call of the same date. Mr Moore was not challenged on that evidence and Mr Purdon also agreed that the postal address was correct. There was no evidence of either communication being undelivered or returned to Services Australia.
Furthermore, Mr Purdon’s evidence was that his reference in an email to Mr Moore of 18 October 2022 to the request ‘to respond as being prior to cob 24th October 2022’ was because Mr Moore had provided that date during their telephone call on 13 October 2022.[112] However, Mr Moore’s evidence was that he told Mr Purdon during that call that the timeframe for his response would be set out in the letter which followed that telephone call. The Tribunal accepts Mr Moore’s evidence. It was not challenged under cross-examination. Accordingly, the Tribunal finds that Mr Purdon could not have known the timeframe for any response unless he received the letter dated 13 October 2022, by post, email or both forms of communication. On the balance of probabilities, the Tribunal is satisfied that Mr Purdon received the letter by email on or around 13 October 2022.
[112] Exhibit 1, page 41.
That letter of 13 October 2022 expressly stated that Mr Purdon’s ‘responses in the interview or your written statement may be used as evidence’, his participation in an interview or provision of a written statement was ‘voluntary and you have the right to decline’, ‘the right to seek independent advice and to ‘have a support person present’ at any interview in which he agreed to participate.[113] These measures demonstrate that the reasonable administrative action was undertaken in a reasonable manner by Services Australia. Accordingly, the Tribunal is satisfied that Mr Purdon’s complaints about the actions taken by Services Australia on 13 October 2022, most specifically Mr Moore, are not made out.
[113] Exhibit 3, page 44.
In this regard, the Tribunal does not accept Mr Purdon’s contention that Mr Moore threatened him with criminal charges, goal or a lifetime ban from the APS. Such threats contrast with the balance of the evidence regarding the telephone call on 13 October 2022 and the subsequent correspondence from Mr Moore to Mr Purdon, such as the aforementioned letter of the same date setting out that the allegations related to potential misconduct and non-compliance with Mr Purdon’s obligations as a customer of the agency. There was no reference to criminal legislation, potential gaol or a ban from APS employment. The Tribunal finds it highly unlikely that Mr Moore would have made the claimed threats during the telephone call, but then not have conveyed any of those matters in the letter of the same date or at any subsequent time to Mr Purdon. Mr Moore presented to the Tribunal with a professional, calm and deliberative demeanour. He told the Tribunal that he always sought to conduct investigations concerning employees of Services Australia in a respectful and non-combative manner. On the balance of probabilities, the Tribunal finds that Mr Moore informed Mr Purdon that the investigation was administrative, not criminal, and did not make the alleged threats regarding criminality. It was plainly an administrative, not criminal investigation. The nature of the investigation was reinforced by the letter of 13 October 2022, which referred to the APS Code of Conduct and associated legislation, and suggested that the matter may be sent to the ‘Conduct and Reviews Team’ at Services Australia, but did not refer to any criminal statute or a related criminal penalty.[114] That the investigation was administrative was also further confirmed in Mr Moore’s subsequent correspondence to Mr Purdon on 18 October 2022.[115] Moreover, Mr Moore told the Tribunal that a very different procedure would have been followed by Services Australia if the investigation was criminal in nature.
[114] Ibid.
[115] Exhibit 1, page 42.
The contemporaneous Services Australia file note recorded that, during the 13 October 2022 telephone call, Mr Purdon expressed a preference to respond in writing to the allegations. However, Mr Purdon never provided any substantive written information or response regarding his outside employment to demonstrate eligibility for the DRA. Rather, he sent Mr Moore correspondence on 18 and 25 October 2022 requesting further details, or ‘better and further particulars’, regarding the allegation concerning his eligibility for the DRA.[116] This was in contrast to Mr Purdon’s approach to the allegation that he searched for, and attempted to access, his Centrelink customer record. In relation to that matter, Mr Purdon provided an explanation by way of letter dated 25 October 2022 and, on 2 November 2022, Mr Moore accepted that Mr Purdon’s access of his record appeared to be ‘a genuine mistake’ and confirmed that no further action would be taken.[117] The Tribunal finds that these actions of Mr Moore demonstrate that the investigation was reasonable and taken in a reasonable manner; he sought information from Mr Purdon, accepted Mr Purdon’s explanation on the one element he substantively responded to and then promptly ended that element of the investigation. As a result, the Tribunal is satisfied that this aspect of the investigation was also a ‘reasonable counselling action’ taken in a reasonable manner in respect of Mr Purdon’s employment, pursuant to subsection 5A(2)(b) of the SRC Act.
[116] Ibid., pages 41 and 43-45.
[117] Ibid., pages 43-45 and 52.
In Mr Moore’s email to Mr Purdon of 2 November 2022, he again noted that provision of a written statement was voluntary, but that if Mr Purdon wished to respond it was requested to be provided by 9 November 2022 (being five working days).[118] Also on 2 November 2022, Mr Purdon responded by email to Mr Moore stating that the time to respond in relation to the allegation concerning his DRA eligibility was ‘insufficient and unreasonable’ and that he required ‘at least 7 working days’, being two further days to that provided in Mr Moore’s correspondence, and to be released from his ‘allocated duties’ with Services Australia in order to provide a response.[119] While Mr Moore was unable to release Mr Purdon from his work duties, on 2 November 2022 he provided Mr Purdon with an extension of 10 working days to 16 November 2022.[120] Despite Mr Purdon previously requesting seven working days to respond and then having been provided with 10 business days to do so by Mr Moore, rather than provide any substantive response, Mr Purdon replied to Mr Moore that his refusal to release Mr Purdon from his ‘allocated duties also means I will be in contempt of my employment conditions’, he could not both respond and perform his work duties and if Mr Moore continued ‘with your unreasonable request I will defend any adverse outcome and plead your correspondence and refusals’ for further time.[121] There was no subsequent correspondence between Mr Moore and Mr Purdon and this was the date of his claimed injury (being 2 November 2022). Mr Purdon attended work on the following day, 3 November 2022, but left unwell later that morning and attended on his general practitioner on 4 November 2022.[122]
[118] Ibid., pages 52-53.
[119] Ibid., page 55.
[120] Ibid., page 56.
[121] Ibid., page 57.
[122] Ibid., page 89.
In all the circumstances, the Tribunal finds that the administrative action taken by Services Australia was reasonable and taken in a reasonable manner in respect of Mr Purdon’s employment. It was apparent that Mr Purdon considered the investigation into his eligibility for the DRA to be a personal affront and he seemed to take a self-defeating and unnecessarily combative approach to the investigation, which contrasted to that of his employer and its officers. The Tribunal is satisfied that the investigation was an appropriate, proportionate, and reasonable action in circumstances where the payment of the DRA to Mr Purdon was based on, and required, lost employment income due to the flood event in NSW in February 2022, and he had not declared any relevant outside employment that may have given rise to his eligibility for that payment. To this end, the Tribunal is satisfied that the investigation was a ‘reasonable disciplinary action (whether formal or informal)’ in respect of Mr Purdon’s employment pursuant to subsection 5A(2)(d) of the SRC Act. For the avoidance of doubt, and for the reasons set out above, the Tribunal also finds that, pursuant to subsection 5A(2)(e) of the SRC Act, the administrative actions associated with the investigation amounted to ‘anything reasonable done in connection with’ the reasonable disciplinary action of conducting the investigation.
For all of the above reasons, the Tribunal finds that Mr Purdon’s ‘disease’ was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment and it is therefore not an ‘injury’ under section 5A of the SRC Act.
Did Mr Purdon make a ‘wilful and false representation’ that he did not suffer, or had not previously suffered, from the ‘disease’?
In light of the Tribunal’s finding that the ‘reasonable administrative action’ exclusion applies in relation to Mr Purdon’s ‘disease’, and it was therefore not an ‘injury’ under the SRC Act, the Tribunal is not required to determine whether Mr Purdon made a ‘wilful and false representation’ that he did not suffer, or had not previously suffered, from that disease. Accordingly, the Tribunal makes no findings in relation to that matter and the associated application of subsection 7(7) of the SRC Act.
Is Comcare liable to pay compensation to Mr Purdon for an ‘injury’ pursuant to section 14 of the SRC Act?
As a result of the Tribunal’s above finding regarding the application of the ‘reasonable administrative action’ exclusion in subsection 5A(1) of the SRC Act, Mr Purdon has not suffered an ‘injury’ and Comcare is therefore not liable to pay compensation to him under section 14 of the SRC Act.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
...................[SGD]..................................................
Associate
Dated: 16 September 2024
Date(s) of hearing:
14-15 August 2024
Date final submissions received:
1 August 2024
Solicitor for Applicant: Mr David Hunter, David Hunter Law
Counsel for Respondent:
Mr Brendan Kelly
Solicitor for Respondent:
Ms Vanessa Parkins, Moray & Agnew Lawyers
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