Re Lim and Comcare

Case [2015] AATA 189

[2015] AATA 189

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4430

Sharon Yuh-Shyan Lim

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Dr James Popple, Senior Member
Date 27 March 2015
Place Canberra

Comcare’s decision on 14 August 2013 is affirmed.

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

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — whether condition is an injury — whether caused by reasonable administrative action — multiple causes of condition — whether condition suffered prior to reasonable administrative action — decision affirmed.

LEGISLATION

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

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007

Telecommunications Act 1997, Schedule 3

CASES

Comcare v Martin [2015] FCA 4

Comcare v Martinez (No 2) (2013) 212 FCR 272
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Drenth v Comcare (2012) 128 ALD 1
Hart v Comcare (2005) 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

Smith v Comcare (2013) 212 FCR 335

REASONS FOR DECISION

James Popple, Senior Member

27 March 2015

Summary

  1. I affirm Comcare’s decision to deny the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  The applicant suffered a psychological condition which arose out of her employment with the Australian Communications and Media Authority (ACMA). But one cause of the condition was reasonable administrative action taken in a reasonable manner by ACMA in respect of the applicant’s employment. Accordingly, the condition is not an injury for the purposes of s 5A of the SRC Act, and Comcare is not liable to pay compensation.

    Background

  2. Dr Sharon Lim worked for ACMA. On 24 March 2011, she submitted a claim for workers’ compensation for “adjustment reaction with depressant anxiety”. She said that she had been bullied and harassed by her supervisor. On 12 July 2011, Comcare disallowed her claim. Comcare conceded that Dr Lim had sustained a psychological condition, which was contributed to, to a significant degree, by her employment with ACMA. But Comcare determined that it was not liable to pay compensation under s 14 of the SRC Act. Comcare said that Dr Lim’s condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment and, therefore, was excluded from the definition of “injury” in s 5A of the SRC Act. On 17 June 2013, Dr Lim requested a reconsideration of that determination. On 14 August 2013, Comcare affirmed its determination.

  3. On 3 September 2013, Dr Lim applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of that decision.

    Decision under review

  4. The decision under review is Comcare’s decision on 14 August 2013 to affirm its determination that Comcare is not liable to pay compensation to Dr Lim.

    Issues

  5. The issues in this review are:

    ·when did Dr Lim suffer the psychological condition; and

    ·was her psychological…

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AGLC
Re Lim and Comcare [2015] AATA 189
Case
[2015] AATA 189
Decision Date

CaseChat Overview and Summary

Dr Lim applied for review of a decision by Comcare, affirming its determination that it is not liable to pay compensation to her. The Tribunal must decide when Dr Lim suffered her psychological condition, and whether that condition was caused by reasonable administrative action taken in a reasonable manner in respect of her employment by the Australian Communications and Media Authority (ACMA). These issues are interrelated: a reasonable administrative action cannot cause a condition that was suffered before that action.

The court examined the principles applicable to determining whether an administrative action is reasonable and taken in a reasonable manner. These principles include that reasonable administrative actions are those taken with respect to the employee as an employee, the employment relationship, and steps under a contract of employment. Actions with respect to the duties of the employee, defining or supervising the employment, job or task, or matters of general administration, management, and policy implementation are not considered administrative actions. The determination of whether a reasonable administrative action was taken in a reasonable manner is an objective decision, dependent on the facts of the case, and not solely established on the basis of the impact on the employee.

Comcare's decision on 14 August 2013, affirming its determination that it is not liable to pay compensation to Dr Lim, is affirmed.

Orders

Orders of the court

Comcare’s decision on 14 August 2013 is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 3 September 2013, Dr Lim applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of that decision.Decision under review The decision under review is Comcare’s decision on 14 August 2013 to affirm its determination that Comcare is not liable to pay compensation to Dr Lim.Issues The issues in this review are:·when did Dr Lim suffer the psychological condition; and·was her psychological condition suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment by ACMA?These two issues are interwoven: a reasonable administrative action cannot cause a condition suffered before that action.Reasonable administrative action taken in a reasonable manner Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A defines “injury” as follows:5A Definition of injury (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. In several recent decisions, the Federal Court has provided guidance on what is a reasonable administrative action, and how to decide whether such an action is taken in a reasonable manner. Some of that guidance is complex. I will set out what the Federal Court has said, then summarize the principles applicable to this review. In Commonwealth Bank of Australia v Reeve,[1] Rares and Tracey JJ explained that:… the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1).However, the Explanatory Memorandum [to the Bill for the Act that inserted s 5A[2]] did not suggest that “administrative action” was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action” in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.[3][1] (2012) 199 FCR 463.[2] Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.[3] (2012) 199 FCR 463 at [73]–[74] per Rares and Tracey JJ.

Ratio Decidendi

Legal Principle Established

I have summarized below the principles that relate to s 5A of the SRC Act, and which are applicable to this review. There is some overlap between the summary points.·The following are administrative actions:oan action with respect to the employee as employee;oan action with respect to the employment relationship that the particular employee has with the employer; andotaking steps under a contract of employment.·The following are not administrative actions:oan action with respect to the duties that an employee is employed to carry out;odefining or delimiting or supervising the employment, job or task entrusted to an employee for them to perform;ogiving directions to them as to how and when they are to perform it; andomatters of general administration, management and the implementation of policy, even if they affect the employment of employees.·Whether a reasonable administrative action was taken in a reasonable manner:ois an objective decision;odepends upon the facts of the case; andois not established solely on the basis of the impact on the employee.·There may be more than one way of doing things “reasonably”. It does not matter that the thing could have been done more reasonably.·If only one cause of a condition satisfies the exclusion in s 5A, the exclusion applies and the condition is not an “injury”. This is so, even if the condition had many separate causes.The operation of s 7(4) of the SRC Act Section 7(4) of the SRC Act provides that: (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. In Smith v Comcare, the Full Court of the Federal Court explained that the question of liability under s 14 should be decided before considering the potential operation of s 7(4).[14] This is because, if the condition is excluded under s 5A, there is no injury for the purposes of the Act and, therefore, no injury for s 7(4) to apply to.[14] (2013) 212 FCR 335 at [34] per Greenwood, Buchanan and Bromberg JJ. Nonetheless, in considering below whether Dr Lim’s condition was suffered as a result of reasonable administrative action taken in a reasonable manner, I will have to decide when the condition occurred—or, at least, decide that the condition occurred no earlier than a certain date. This is because, for a condition to be a result of an administrative action, the action must have taken place before the condition was suffered. I can make that decision without considering s 7(4), which only applies if I decide that Dr Lim’s condition is not excluded under s 5A.The use of template letters The facts set out in [18] and [19] below are not contentious. Dr Lim commenced working for ACMA in September 1995. In February 2007, she was promoted to an Executive Level 1 position. In December 2009, ACMA was internally restructured and Dr Lim was assigned to a position in the Radiocommunications, Licensing and Telecommunications Deployment Section (the Section) within the Operations Branch. Ms Michelle Richardson was manager of the Section and Dr Lim’s immediate supervisor.