Re Findlay and Comcare

Case [2013] AATA 324

[2013] AATA 324      

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3212

Re

John Findlay

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Date 21 May 2013 
Place Melbourne

The reviewable decision denying liability to compensate Mr Findlay in respect of an adjustment disorder, made by Comcare on 25 May 2012, is affirmed.

......................[sgd].................................................

Deputy President J W Constance

CATCHWORDS

COMPENSATION – adjustment disorder – whether applicant suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act - reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1) 5A, 5B, 7(4), 14(1)

CASES

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Georges and Telstra Corporation [2009] AATA 731

Hart v Comcare (2005) 145 FCR 29

REASONS FOR DECISION

INTRODUCTION

  1. In December 2011 Mr Findlay lodged a claim with Comcare seeking compensation for a mental condition he claimed he suffered as a result of a meeting held with his supervisor at the Department of Human Services.

  2. Comcare rejected his claim on the basis that the meeting was reasonable administrative action and that it was taken in a reasonable manner in respect of Mr Findlay's employment.  Under the Safety, Rehabilitation and Compensation Act 1988 (Cth) an injured employee is not entitled to compensation if his or her injury is a result of such action.

  3. Mr Findlay has applied for a review of this decision.  For the reasons which follow the decision under review will be affirmed.

    EVIDENCE AND FINDINGS OF FACT

  4. Unless stated otherwise the following findings of fact are based on the evidence of Mr Findlay.

  5. Mr Findlay is 48 years old. He has been a member of the Australian Public Service since 1983.

  6. In 2011 Mr Findlay was a Team Leader (APS 6 position), employed by the Department of Human Services, Child Support Agency in its Dandenong office.  He supervised a team of approximately 14 members.  Between February 2011 and June 2011 Mr Findlay was responsible for managing the transition of his team from working on a special project to assisting in the mainstream work of the Agency.  This transition caused some difficulties in the management of the team which in turn caused Mr Findlay to suffer stress.  However, with professional assistance he was able to manage his feelings of stress and was able to fulfil his role as Team Leader.

  7. In August 2011 Mr Findlay took planned leave.  From late August 2011 until November 2011 Mr Clarke, who worked in the Melbourne office, was Mr Findlay’s supervisor.  Shortly after Mr Clarke commenced in this position Mr Findlay formed the view that Mr Clarke was not showing any interest in his team. He felt unsettled by this.

  8. On Thursday 3 November 2011 Mr Findlay was absent from work.  On his return the following day he was advised of an incident in which a member of his team had become distressed and made remarks disparaging of the…

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AGLC
Re Findlay and Comcare [2013] AATA 324
Case
[2013] AATA 324
Decision Date

CaseChat Overview and Summary

In the matter of Mr Findlay’s application for review of a decision, the respondent Comcare sought to affirm the original decision which denied Mr Findlay’s claim for compensation for an injury sustained in the course of his employment. The applicant, Mr Findlay, a public servant, argued that he suffered an injury as a result of administrative action taken in respect of his employment. The primary issue was whether the meeting between Mr Findlay and his supervisor, Mr Clarke, on 8 November 2011, constituted "reasonable administrative action" taken in a "reasonable manner" in respect of Mr Findlay's employment, which would exclude his condition from being considered an injury under the Act. The court had to determine whether the meeting was reasonable administrative action and if it was taken in a reasonable manner, considering the circumstances and the nature of the relationship between the two public servants.

The court considered the series of events leading up to the meeting, including an incident where a team member threatened self-harm, and Mr Clarke’s intention to meet with team members to address their concerns about Mr Findlay's management. Given the context and Mr Clarke’s role as Mr Findlay’s immediate supervisor, the court found that the meeting was necessary to address the unsatisfactory workplace situation. The court also concluded that the manner in which the meeting was conducted, including requiring Mr Findlay to remain despite his indication to leave, was reasonable given the nature of the relationship and the seniority of the parties involved. Consequently, the court held that the meeting was reasonable administrative action taken in a reasonable manner, thereby excluding Mr Findlay's condition from the definition of "injury" under the Act.

As the meeting was deemed reasonable administrative action taken in a reasonable manner, the court affirmed the original decision denying Mr Findlay’s claim for compensation. The court found that the exclusionary provision of the definition of "injury" applied, and therefore, compensation under section 14 was not payable. The court’s decision was based on the specific circumstances of the administrative action and its reasonable nature, in light of the evidence provided.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Findlay has applied for a review of this decision. For the reasons which follow the decision under review will be affirmed.EVIDENCE AND FINDINGS OF FACT Unless stated otherwise the following findings of fact are based on the evidence of Mr Findlay. Mr Findlay is 48 years old. He has been a member of the Australian Public Service since 1983. In 2011 Mr Findlay was a Team Leader (APS 6 position), employed by the Department of Human Services, Child Support Agency in its Dandenong office. He supervised a team of approximately 14 members. Between February 2011 and June 2011 Mr Findlay was responsible for managing the transition of his team from working on a special project to assisting in the mainstream work of the Agency. This transition caused some difficulties in the management of the team which in turn caused Mr Findlay to suffer stress. However, with professional assistance he was able to manage his feelings of stress and was able to fulfil his role as Team Leader. In August 2011 Mr Findlay took planned leave. From late August 2011 until November 2011 Mr Clarke, who worked in the Melbourne office, was Mr Findlay’s supervisor. Shortly after Mr Clarke commenced in this position Mr Findlay formed the view that Mr Clarke was not showing any interest in his team. He felt unsettled by this. On Thursday 3 November 2011 Mr Findlay was absent from work. On his return the following day he was advised of an incident in which a member of his team had become distressed and made remarks disparaging of the team and Mr Findlay's management of it. He was told also that the team member had threatened to harm herself. On the morning of Friday 4 November 2011 Mr Findlay was told by a colleague that Mr Clarke was on his way to the Dandenong office. Later that morning Mr Clarke arrived and met with Mr Findlay. Mr Findlay and Mr Clarke vary in their recollections of what was said at this meeting, which is not surprising bearing in mind the time which has elapsed since it took place. However on the basis of the evidence of both Mr Clarke and Mr Findlay I am satisfied that at least the following happened:·there was some discussion as to problems being experienced by Mr Findlay's team and Mr Findlay's management of those problems;·when asked by Mr Clarke if he wished to have a support person present during their discussion, Mr Findlay said that he did not; Mr Findlay was confused by this question as he did not understand the reason for it;·Mr Clarke advised Mr Findlay that he intended to return to the Dandenong office the following Monday (7 November 2011) to talk to the team members;·Mr Clarke offered Mr Findlay the opportunity to be absent from the office on the Monday; Mr Findlay initially declined this offer but later accepted it and was absent from work on that day;·Mr Findlay felt “ambushed”[1] during the meeting as he did not understand why Mr Clarke had not discussed in greater detail the events of the previous day as he (Mr Findlay) believed this was the purpose of the meeting;·Mr Findlay and Mr Clarke agreed that they would meet on 8 November 2011 in the Melbourne office.[1] Exhibit R1 p.63.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Subsection 7(4) makes special provision for determining the date on which an “injury”, being a “disease”, is suffered:(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:(a)the employee first sought medical treatment for the disease, or aggravation; or(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;whichever happens first.CONSIDERATION OF THE ISSUESIssue 1: Has Mr Findlay suffered “an injury” within the meaning of the Act? As it is not in dispute that Mr Findlay has suffered a “disease” as defined, it is necessary to decide whether the disease was suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.” If the meeting was:(a)“reasonable administrative action”; and(b)“taken in a reasonable manner”; and(c)“in respect of [Mr Findlay's] employment”,then the exclusionary provision of the definition of “injury” applies and the condition from which Mr Findlay suffers does not come within the definition of “injury” in section 5A and compensation is not payable under section 14. It does not matter that other factors, not excluded by the definition, may have contributed to Mr Findlay's condition: Hart v Comcare. [8]Was the meeting between Mr Findlay and Mr Clarke on 8 November 2011 “reasonable administrative action”?[8] (2005) 145 FCR 29. The meeting took place as a result of a series of events which included:·an incident involving a team member threatening self-harm;·the meeting between Mr Findlay and Mr Clarke during which Mr Clarke told Mr Findlay that he intended meeting with members of the team and that he would meet with Mr Findlay again after he spoke to them and during which he gave Mr Findlay an opportunity to have a support person with him;·Mr Clarke’s meeting with team members who expressed dissatisfaction with the manner in which Mr Findlay was fulfilling his role as Team Leader. Mr Clarke was Mr Findlay's immediate supervisor and was responsible for the efficient operation of the team being led by Mr Findlay. I am satisfied that the events which took place required prompt action to address what was clearly an unsatisfactory workplace situation. In the circumstances presented to Mr Clarke on 3 November 2011, and taking into account the actions of Mr Clarke leading up to the meeting on 8 November 2011, I am satisfied that the holding of the meeting was “reasonable administrative action”.Was the administrative action “taken in a reasonable manner”? I have found that the meeting was conducted in the manner described by Mr Clarke. This was a meeting between two experienced public servants, one of whom was the immediate supervisor of the other. At the time Mr Findlay was 46 years old and had approximately 28 years’ experience in the Public Service. It is reasonable to expect that there would have been some tension between the two individuals concerned and that at times voices would have been raised. In my view it was reasonable for Mr Clarke to require Mr Findlay to remain in the meeting when Mr Findlay indicated he was about to leave.