Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 768
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/375
GENERAL ADMINISTRATIVE DIVISION ) Re CESARE ALBANESE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date21 July 2004
PlaceAdelaide
Decision The Tribunal:
(a) sets aside the decision under review, and in substitution for that decision decides that the respondent is liable to pay compensation in respect of the applicant’s psychological disorder;
(b) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(c) orders that in the absence of any such application the respondent pay the costs of the proceedings.
(D.G. Jarvis)
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – adjustment disorder with mixed emotions – Customs officer denied access to database because of security query – perception of victimization – psychological disorder not result of failure to obtain transfer or benefit in connection with employment – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4 and s 14
Comcare v Mooi (1996) 69 FCR 439
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Suters v Australian Postal Corporation (1992) 28 ALD 320
Wiegand v Comcare (2002) 72 ALD 795
Re Davill and Australian Postal Corporation (AATA 10629, 22 December 1995)
Comcare v Ross [1996] 680 FCA 1
Trewin v Comcare (1998) 84 FCR 171
Re Liu and Comcare [2004] AATA 617
Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION
21 July 2004 Deputy President D G Jarvis Introduction
1. The applicant, Cesare Albanese, claimed compensation on 21 February 2002 for anxiety with reactive depression, and alleged that this condition developed as the result of events at a meeting with management of his employer, the Australian Customs Service (“ACS”). In his claim for compensation, the applicant asserted that this meeting took place on 28 October 2001, but later corrected this to 1 November 2001. I will refer in detail to the events of this meeting later in these reasons. The respondent rejected the applicant’s claim on 23 May 2002. That rejection was affirmed in a reviewable decision made on 11 October 2002. The applicant has applied to this Tribunal for review of that reviewable decision.
2. The applicant was represented by Ms Lorraine Walker of counsel, and the respondent was represented by Mr Simon Stretton of counsel. The applicant gave evidence and also called his family doctor, Dr Pasquale Cocchiaro; a psychiatrist, Dr John Schembri, who gave evidence by telephone; and two management personnel then with ACS in South Australia, namely Mr Richard Janeczko and Ms Virginia Lynch. The respondent called a psychiatrist, Dr David Kutlaca and a former employee of ACS, namely Mr William Hogan (who gave evidence by video and by telephone respectively). The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) were admitted in evidence, and the parties tendered a number of other documents. Counsel provided their final submissions in writing. The respondent’s submissions were…
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- AGLC
- Re Albanese and Comcare [2004] AATA 768
- Case
- [2004] AATA 768
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the Tribunal to decide were whether Mr Albanese's psychological disorder arose out of or in the course of his employment, as required by section 4 of the Safety, Rehabilitation and Compensation Act 1988, and whether the denial of compensation was legally sound. The Tribunal had to examine the evidence and determine if the psychological disorder was a result of the perceived victimization at work or if it was instead due to the failure to obtain a transfer or other employment-related benefit.
The Tribunal concluded that Mr Albanese's psychological disorder did indeed arise out of his employment. The Tribunal found that the denial of access to the database and the associated perception of victimization constituted a significant work-related incident. This conclusion was supported by relevant case law, including Comcare v Mooi and Treloar v Australian Telecommunications Commission. The Tribunal set aside the original decision and ruled that Comcare was liable to pay compensation for Mr Albanese's psychological disorder.
The Tribunal also ordered that Comcare pay the costs of the proceedings unless Mr Albanese applied within 14 days to have the costs reserved for another determination. This decision underscores the importance of addressing psychological injuries in the workplace and the need for employers to consider the impact of their actions on employee mental health.
Orders
Orders of the court
The Tribunal:
(a) sets aside the decision under review, and in substitution for that decision decides that the respondent is liable to pay compensation in respect of the applicant’s psychological disorder;
(b) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(c) orders that in the absence of any such application the respondent pay the costs of the proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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