Randhawa and Comcare
[2009] AATA 490
•1 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 490
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5443
GENERAL ADMINISTRATIVE DIVISION ) Re KITTU RANDHAWA Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member
Dr J Campbell, MemberDate1 July 2009
PlaceSydney
Decision The reviewable decision is varied as follows: Ms Randhawa was not entitled to payment pursuant to s 19 or s 37(5) of the Safety, Rehabilitation and Compensation Act 1988 on or from 20 July 2007.
....................[sgd]........................
Senior Member
Mrs Josephine Kelly
CATCHWORDS
COMPENSATION – Department of Defence employee – Accepted condition major depressive disorder – Determination no present incapacity – Whether injury materially contributed to by failure to obtain promotion – Whether a rehabilitation determination – Major depressive disorder materially contributed to by failure to obtain promotion – No compensable injury - Decision varied
Safety, Rehabilitation and Compensation Act 1988, ss 4, 19, 37
Hart v Comcare (2005) 145 FCR 29
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
1 July 2009 Mrs Josephine Kelly, Senior Member
Dr J Campbell, MemberSUMMARY
1. Ms Kittu Randhawa was employed by the Department of Defence (Defence) from 1995 until 8 June 2001 when her employment was terminated. On 10 April 2003, Comcare accepted liability for "major depressive disorder – single episode" sustained on 3 May 2000. Following Ms Randhawa's request for reconsideration, on 14 August 2003 the decision was varied to the effect that pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), Comcare was liable to pay compensation in accordance with the Act in respect of 'major depressive disorder' on and from 3 May 2000.
2. Ms Randhawa seeks the review of a decision made by Comcare on 26 October 2007 (the reviewable decision) which affirmed a determination made on 20 July 2007 that incapacity payments were not presently payable in accordance with s 19 of the Act. Ms Randhawa represented herself in these proceedings.
3. Although the reviewable decision related to Ms Randhawa's entitlement to compensation payments for incapacity, Comcare has raised the issue of whether Ms Randhawa suffered an "injury" as defined in the Act. On behalf of Comcare, Mr Dube of counsel, argued that the psychiatric condition, however described, suffered by Ms Randhawa, was materially contributed to by her failure to obtain a promotion, and/or a failure to obtain a transfer and/or a failure to obtain benefits, in which case the condition is not compensable because it is not an "injury" as defined in s 4 of the Act. This argument is open to Comcare because of the Full Federal Court's decision in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253. If the argument is successful, Ms Randhawa's claim must fail. Different doctors give different diagnoses of the psychiatric condition suffered by Ms Randhawa, however we use the diagnosis for which liability was accepted, major depressive disorder.
3. For the reasons that follow, we find that the major depressive disorder suffered by Ms Randhawa from 3 May 2000 was materially contributed to by her failure to obtain a promotion. Therefore she did not suffer an "injury" within the meaning of s 4 of the Act. The reviewable decision is varied as follows: Ms Randhawa was not entitled to payment pursuant to s 19 or s 37(5) of the Act on or from 20 July 2007.
THE ISSUES
4. Comcare accepts that Ms Randhawa suffered major depressive disorder as a result of various events and incidents in the course of her employment with Defence during 2000.
5. The issues in this case are:
(a) Was the major depressive disorder suffered by Ms Randhawa excluded from the definition of "injury" in the Act because it was materially contributed to by a failure to obtain a promotion, transfer or benefit?
(b) If not, is an employee who is undertaking a rehabilitation program pursuant to Division 3 of Part III of the Act, entitled as a matter of law to payments pursuant to s 37(5) of the Act?
(c) If the answers to (a) and (b) are no, was Ms Randhawa incapacitated for work on 20 July 2007?
MS RANDHAWA’S ARGUMENTS
6. On the first day of hearing on 12 March 2009, Ms Randhawa said that she did not maintain that she was incapacitated for work in July 2007 when the decision was made to cease payments. She argued that because she was on a return to work program (the program) from 2005 until October 2008, that is after Comcare had made the decision not to pay incapacity payments in July 2007, she was entitled to incapacity payments under the Act until the closure of the program in 2008.
7. In summary, we understand her argument to be that because the program had not been effective in getting her back to work, she was entitled to incapacity payments. Her argument raises the legal question whether as a matter of law was she entitled to incapacity payments while undertaking the program?
8. Ms Randhawa strongly denied that any failure to failure to obtain a promotion, transfer or benefit had materially contributed to her suffering the major depressive disorder. She believed that her difficulties in Defence stemmed from being a "whistleblower", a woman, and being of ethnic descent.
9. During submissions on the fifth and last day of the hearing on 11 June 2009, after summarising the history of her difficulties with Defence during and after her employment had been terminated, including her opinion that nothing was done for her through the program, Ms Randhawa raised for the first time that she was actually incapacitated to some extent.
Was the major depressive disorder suffered by Ms Randhawa materially contributed to by her failure to obtain a promotion, transfer or benefit?
10. We address the issue of whether the psychiatric condition suffered by Ms Randhawa falls outside the definition of "injury" in s 4 of the Act first because, in our opinion, if the answer to that question is yes, the other issues do not arise.
11. Incapacity payments are payable if an employee is incapacitated for work as a result of an injury (s 19(1) of the Act). Comcare is liable to pay compensation for incapacity according to the formula/e in s 19 of the Act (s 19(2)). A rehabilitation authority may determine that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program (s 37(1)). Payment of compensation to an employee undertaking a rehabilitation program is determined by reference to compensation that would otherwise have been payable under s 19 of the Act (s 37(5)).
12. In summary, if Ms Randhawa has not suffered an "injury" as defined, she was not entitled to incapacity payments, the provision of a rehabilitation program, or to payments pursuant to s 37(5) of the Act.
Preliminary issue
13. There was a matter Mr Dube did not specifically address which, in our view, arises on the material before us and which we should consider, given that Ms Randhawa was not legally represented. As set out above, the reviewable decision referred to denying liability under s 19 of the Act. In our view the power being exercised by the primary decision maker and on reconsideration was conferred by s 37(5) of the Act which specifically states:
Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a) if the employee is undertaking a full-time program – compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of that program; or
(b) if the employee us undertaking a part-time program – compensation is payable to the employee of such an amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program. (Emphasis added.)
14. In summary, when an employee is undertaking a rehabilitation program, compensation is payable under s 37(5) rather than s 19 (or s 31) of the Act, but the amount of compensation is determined by reference to the calculation set out in s 19 which is in Part II of the Act.
15. Decisions made pursuant to s 19 and s 37(5) of the Act are subject to the reconsideration and review regime provided by Part VI of the Act, including review by this Tribunal. It may be that the reference in the reviewable decision to s 19 is short-hand, because s 37(5) requires the amount of compensation to be determined pursuant to that provision. In any event, whether or not we are correct in drawing the distinction we have, it is our view that we may proceed to determine the matter. The Tribunal sits in the shoes of the decision-maker and has all the powers and discretions conferred on the decision-maker (s 43(1) of the Administrative Appeals Tribunal Act 1975) (the AAT Act). In Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92, Davies J said that s 43 of the AAT Act confers on the Tribunal:
… an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.
The Substantive Question
16. Turning to the question of whether Ms Randhawa suffered an "injury", we consider that the key to the resolution of this issue lies in the documents that came into existence around the time of the alleged injury, that is around 3 May 2000.
17. Although Ms Randhawa's employment with Defence was terminated in June 2001, her dealings with that department continued until her rehabilitation program was closed in 2008. Her dealings with Comcare, which arise from her employment with Defence, have continued since she lodged her application for compensation in January 2003.
18. There were in evidence eight volumes of documents provided to the Tribunal pursuant to s 37 of the AAT Act for the purpose of these proceedings, one volume of documents relating to proceedings in this Tribunal in 2006 which were resolved by a consent order, numerous other documents, and witness statements. Oral evidence was given by several witnesses and Ms Randhawa.
19. In summary, Ms Randhawa believes that she has been treated badly by Defence. Since 1999, she has exercised her rights to lodge grievances, complain, seek reviews, including from the Minister, appeal, and take legal proceedings for unpaid monies. She has pursued her claims for compensation and rehabilitation for the alleged injury since 2003.
20. Following is an outline of her history with Defence so far as it is relevant to the present proceedings, as it emerges from the evidence before us.
21. In March 1999, Ms Randhawa was working at 503 Wing at Richmond Airforce base. Allegations were made against her in relation to her over-time and flex-leave claims. In May 1999, she was promoted to a position referred to as "APS5" based at the naval base, Albatross near Nowra in the Naval Aviation Logistics Management Squadron (NALMS). However, at that time, NALMS was operating from Nowra and Defence Plaza in Sydney. That circumstance caused problems in relation to claims for travel allowance and over-time. In October 1999, Ms Randhawa lodged a claim against management and applied for a promotion to the position of Seahawk Integrated Logistics Manager.
22. In February 2000 she was interviewed by staff of the Inspector-General of Defence (the Inspector-General). She conceded that she had "guestimated" her over-time claim. Later that month a finding was made that there had not been fraud, which was confirmed to her in April.
23. Critically, on 7 March 2000 she did not obtain the promotion to Seahawk Integrated Logistics Manager she had sought. Mr Symons was successful. On 8 March 2000, Ms Randhawa and Mr Symons had a conversation at Brisbane airport about which they both gave evidence. We find that Mr Symons did make a foolish comment which Ms Randhawa took to suggest that she acted dishonestly. They both knew then that Mr Symons had been successful.
24. On 10 April 2000, Ms Randhawa requested an upgrade from an APS 5 to APS 6 position. On Monday 17 April 2000, Mr Symons became her supervisor. Ms Randhawa's diary note for that day states that she had a call from Mr Symons after she called in sick, and that he demanded that she return to Nowra and to check all her movements and discuss issues in person. The diary note filled the whole column for that day. She took flex leave on the Wednesday and Thursday of that week. Mr Symons gave evidence to the same effect.
25. Mr Symons and Ms Randhawa had their first discussion on 27 April 2000. She listed in her diary various demands that Mr Symonds made of her, for example she was required to move her permanent accommodation to Sydney. On 1 May 2000, Ms Randhawa took flex leave and, from 2 May to 17 May 2000, she was on sick leave.
26. On 1 May 2000, Ms Randhawa also wrote to the Secretary of Defence. She wished to lodge a grievance against the manner in which her travel requisitions and overtime had been processed since she had taken up her appointment at NALMS. The problems arose because her position was based in Nowra and she lived in Sydney. She directed criticism towards Mr Birchley, the Business Manager. On the same day she requested the head of NALMS, Captain Horne, to upgrade her position to APS 6, and she applied to join the RAAF Reserves.
27. Dr Ebrahimi's clinical notes dated 3 May 2000 record that Ms Randhawa reported that she "cannot sleep for months". This is the accepted date of injury. The doctor's notes of 10 May 2000 record that she was still very stressed.
28. On 30 June 2000, the Inspector-General confirmed there was no fraud in relation to overtime and flex leave.
29. On 21 July 2000 the relationship between Mr Symons and Ms Randhawa had escalated to the point where she requested a mediation in front of a witness. Her diary note appears to list matters she wished to address with Mr Symons, including overtime and flex leave, and a request to move to another office. A two-day mediation with Mr Symons was conducted in September 2000.
30. On 13 September 2000 the Inspector-General reported to Mr Birchley that an investigation found that there had been no improper interference by Ms Randhawa in a NALMS tender.
31. A minute on Defence Corporate Support Sydney Central letterhead, which Comcare asserted was dated 23 October 2000, addressed Ms Randhawa's submissions made to the Secretary on 1 May 2000. It addressed four matters: Grievance regarding mismanagement and harassment in 503 WING and NALMS; Review of recruitment/selection processes at NALMS, Review of entitlements –travel and overtime NALMS, and Review of management practices and policies in NALMS. The conclusion in relation to recruitment is significant. It notes Ms Randhawa's claim that she will never be promoted in NALMS because of her gender, the organisation's culture, and the manner in which it conducts its business. The conclusion was that the facts do not support her claim:
“It is true that she has now been interviewed on three separate occasions for the ASO6 business Manager position and found unsuitable on each occasion”.
These were in addition to her failure to win the position won by Mr Symons.
32. On 1 November 2000, Ms Randhawa sent Captain Horne a lengthy email about the review which has just been summarised. She stated:
“I have suffered a loss of promotion, loss of entitlements, loss of privileges, loss of training and development”.
33. On 6 November 2000, Ms Randhawa told Mr Symons that she would do what was on her duty statement and not more. On 10 November 2000 she argued with Mr Symons about studying. On 12 November she requested the Merit Protection Commission for review of action in relation to her May 2000 grievance. Dr Ebrahimi's clinical notes recorded that she was very depressed on 14 November 2000 and he certified her unfit. On 17 November she met with Mr McLenahan and was told she was not being transferred and could not work from home. She had another meeting on 27 November when she had requested that she work from home. On 28 November 2000, Dr Ebrahimi recorded: "very depressed and teary", "alcohol".
34. A second mediation with Mr Symons was held on 12 December 2000 and Ms Randhawa returned to work on 18 December 2000. On 22 December she had an interview with Honeywell, a Defence contractor. On 8 February 2001 Ms Randhawa requested leave without pay from 26 February until 31 August 2001 and stated that she would defer resignation until issues "resolved". She was granted leave only for three months which lead to her employment being terminated by Defence on 8 June 2001.
35. The Merit Protection Commission Review of Action was closed on 10 April 2001.
36. Although not central to our decision, it is helpful to summarise what happened to Ms Randhawa from the time she ceased working at Defence. Her relationship with a serviceman ended, and later she complained about him. She claimed to have been sexually assaulted while working at Honeywell in March/April 2001, she was admitted into the RAAF Reserves in September 2001, she lodged an anti-discrimination complaint in New South Wales against Honeywell, first saw Dr Leon, a psychiatrist in April 2002, and ceased employment with Honeywell and signed a deed for $15,000 for pain and suffering in June 2002.
37. In July 2002 she commenced officer training at Point Cook. She was removed from that training in November 2002. She was placed on suicide watch and saw a psychologist.
38. Ms Randhawa signed her claim for compensation in relation to 3 May 2000 on 28 November 2002. It was determined on 10 April 2003.
39. On 14 April 2003 she requested intervention from the Minister for Defence in a 35 page document. She sought the following outcomes:
A.Recompense
B.Compensation
C.Disciplinary Action
D.Corrective Actions
40. On 1 September 2004 Ms Randhawa commenced proceedings in the Chief Industrial Magistrates Court against Defence for the recovery of monies alleged to be unpaid by the Commonwealth. Settlement occurred on 6 June 2006. Ms Randhawa received $45,000 which was apportioned to overtime, higher duties allowance, travelling allowance, relocation expenses, and isolated establishment allowance.
41. Ms Randhawa was not employed from the time she left Honeywell in June 2002 until April this year when she began a job with a local government authority, apart from some voluntary activities, trying to establish a café business in Western Sydney, and working for her parents for a few months in the United Kingdom. She received incapacity payments from Comcare from 2003 until the reviewable decision was made in 2007.
CONCLUSION
42. As already set out, the documentary evidence in this case was voluminous. The evidence of lay witnesses was not very helpful given the elapse of time since the relevant events occurred. Clearly, the relationship between Ms Randhawa and Mr Symons was one of conflict as soon as he was successful in gaining the promotion in April 2000, and that conflict escalated. Ms Randhawa's evidence prepared and given almost nine years after the relevant events is of little assistance. That is not a criticism of Ms Randhawa. Much has happened in her life since, and her view of events is coloured by her sense of how unjustly she has been treated. The views of other people about what was happening in 2000, also does not assist us.
43. The critical medical evidence in this case is that of two psychiatrists, Dr Wilcox and Dr Pickering. Ms Randhawa first saw Dr Pickering in December 2003. Dr Wilcox and Dr Pickering gave oral evidence concurrently. Reports from both doctors were also in evidence. Interestingly, Dr Pickering's oral evidence was that he did not understand that Ms Randhawa's employment with Defence had been formally terminated. Both doctors agreed that Ms Randhawa doggedly pursued a position with Defence. This was apparent from her amendment to the program when she crossed out the objective of obtaining work with an alternative employer. She was determined that Defence would give her a job.
44. We prefer the evidence of Dr Wilcox to that of Dr Pickering. As well as taking a history from Ms Randhawa, Dr Wilcox has carefully reviewed the documents, which we consider are critical in this case. During her oral evidence she noted that Ms Randhawa's failure to obtain the promotion in April 2000 coincided with her taking time off work. This is also apparent from the history we have set out above.
45. This conclusion is reinforced by the fact that when she made her claim for compensation at the end of 2002, Ms Randhawa identified 3 May 2000 as the date of injury.
46. On the other hand, Dr Pickering has been influenced by Ms Randhawa's reporting of events and saw her as a victim of harassment and bullying.
47. We find that Ms Randhawa's accepted condition was materially contributed to by her failure to obtain a promotion to Seahawk Integrated Logistics Manager while employed by Defence in March/April 2000. It is immaterial that other employment factors may have also contributed to the condition, as long as the failure to obtain a promotion materially contributed: Hart v Comcare (2005) 145 FCR 29. Therefore she did not suffer an injury.
48. There were many other aspects of her employment with Defence about which Ms Randhawa complained during 2000. Given our finding in relation to the failure to obtain a promotion, it is unnecessary to determine whether overtime, flex time and travel allowance were benefits or entitlements, and whether the disputes about them also contributed.
49. As Ms Randhawa did not suffer an "injury" as defined in the Act, she was not entitled in July 2007 to payments, whether correctly identified as pursuant to s 19 or s 37(5) of the Act. It is therefore unnecessary for us to consider the other issues that arose in this case.
50. Mr Dube said that it was possible that a debt might be raised by Comcare against Ms Randhawa if this Tribunal came to that conclusion. We make the following observations. The decisions of the Federal court in Hart and Hannaford were published in March 2005 and June 2006 respectively. It is only since those decisions that this Tribunal could have come to the conclusion it has. Given the length of time Ms Randhawa was receiving incapacity payments and was on a rehabilitation program, such an action would in our view be very harsh.
DECISION
51. For the reasons given above, we decide that Ms Randhawa was not entitled to payment pursuant to s 19 or s 37(5) of the Act on or from 20 July 2007. We vary the reviewable decision accordingly.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member and Dr J Campbell, Member.
Signed: …..…[sgd]………..
Steven Mulipola, Associate
Dates of hearing: 12 and 13 March 2009; 9, 10 and 11 June 2009
Date of decision: 1 July 2009
Representative for the Applicant: Self-represented
Counsel for the Respondent: Mr B Dube
Solicitors for the Respondent: Dibbs Barker
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