Re Pettiford v Comcare

Case [2014] AATA 95

[2014] AATA  95

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/0193; 2012/5159

Re

Jenny Pettiford

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Senior Member A K Britton
Date 27 February 2014
Place Sydney

1. The decision under review made on 22 December 2011 is set aside and in substitution of that decision, the Tribunal decides that Comcare is liable for the first claimed injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (2012/0193).

2.   The Registrar is requested to list Application No. 2012/5159 for a directions hearing. Leave is granted to the parties to elect to attend by phone.

........................[SGD]................................................

Senior Member A K Britton

CATCHWORDS

WORKERS’ COMPENSATION — Psychiatric injury — Whether injury is the result of reasonable administrative action taken in a reasonable manner — Reasonableness to be assessed with reference to the circumstances surrounding the action — Difference between administrative action and operational action — Whether the injury was contributed to, to a significant degree, by the employees employment by the Commonwealth — Meaning of employment

LEGISLATION

Public Service Act 1999 (Cth) – s 33

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4; 5A(1);5A(2); 5B(1); 5B(3); 14

Workers' Compensation Act 1926-1960 (NSW) – s 6(1)

Workers Rehabilitation and Compensation Act 1986 (SA)

Workplace Relations Act 1996 (Cth) – s 328

CASES

Comcare v Martinez (No 2) [2013] FCA 439 Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 125 ALD 181

Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

National Australia Bank Limited v KRDV [2012] FCA 543

SECONDARY MATERIALS

Centrelink Agreement 2009-2011

REASONS FOR DECISION

Senior Member A K Britton

27 February 2014

  1. Psychologist Jenny Pettiford is in her early forties and employed as a job capacity assessor with Centrelink. She has been diagnosed as suffering from an anxiety and depressive disorder and has not worked since a meeting with her manager, Paul Nugent, on 30 August 2011 during which she was directed to work “standard hours”.

  2. Ms Pettiford seeks review of two decisions made by Comcare. In the first decision made in October 2011, Comcare refused to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of Ms Pettiford’s claimed injury “acute reaction to stress”. Comcare accepted that the claimed condition was contributed to, to a significant degree, by Ms Pettiford’s employment with Centrelink, but found that it was “a result of reasonable administrative action taken in a reasonable manner in respect of [Ms Pettiford’s] employment” and therefore, by the operation of the exclusionary provision in s 5A(1) of the Act, she was not entitled to compensation.

  3. In the second decision Comcare refused to accept liability under the Act in respect of the claim made by Ms Pettiford in July 2012 alleging “aggravation of adjustment…

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AGLC
Re Pettiford v Comcare [2014] AATA 95
Case
[2014] AATA 95
Decision Date

CaseChat Overview and Summary

In Re Pettiford v Comcare, Ms Pettiford, a former employee of Centrelink, sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for a psychiatric injury she claimed was caused by her employment. The dispute centred on whether the decision by Centrelink to require Ms Pettiford to return to work, following a medical assessment that she was fit to do so, constituted an event or occurrence in the course of her employment that contributed to her psychiatric injury. The Federal Circuit Court was tasked with determining whether the decision to require Ms Pettiford's return to work fell within the definition of "employment" under the Act, and if it contributed to her claimed psychiatric injury.

The court examined whether the decision to return to work was an event or occurrence in the course of Ms Pettiford’s employment that she would not have been exposed to but for her employment. The court considered whether the decision, while being about the employment relationship, also involved an event or occurrence in the course of employment. It was noted that the decision to return to work was indeed a decision about the employment relationship but also had implications for her workplace environment. The court had to balance the distinction between a decision about the employment relationship and one about a feature of the workplace or connected to the employee’s environment.

After careful deliberation, the court concluded that while the decision to return to work was a decision about the employment relationship, it also constituted an event or occurrence in the course of Ms Pettiford's employment. The court found that the decision, given its impact on her workplace environment, did contribute to her psychiatric injury. Consequently, the court ruled in favour of Ms Pettiford, affirming her entitlement to compensation under the Act.

The court's decision was based on the finding that the decision to require Ms Pettiford to return to work, although primarily a decision about her employment relationship, was also an event or occurrence in the course of her employment that contributed to her psychiatric injury. This ruling highlights the importance of considering the interplay between decisions about employment and events or occurrences in the workplace when assessing claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Orders

Orders of the court

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Background

Background to the litigation

The GP certified Ms Pettiford unfit for work for two days. He subsequently referred Ms Pettiford to a psychologist, and later a psychiatrist, for treatment. It is agreed that following the meeting Ms Pettiford suffered an acute psychiatric illness (variously described). Ms Pettiford has been certified unfit to work since the 30 August 2011 meeting.Background to Ms Pettiford’s hours of work While working at Centrelink Ms Pettiford lived with her husband on a farm about 25 kilometres out of Mudgee. They shared the use of a car. Apparently there is no public transport servicing the area. Shortly after commencing at Centrelink in 2006 Ms Pettiford started to work a four-day week, commencing at 7 am. She preferred to start early because this meant she could travel to and from work with her husband who was required to be at work by 7 am. She believed the arrangement not only suited her personal convenience but also improved her efficiency because it gave her uninterrupted time to complete reports in the hour or so before the office opened. In early January 2010 Mr Nugent raised with Ms Pettiford concerns about her spread of hours. She responded in an email sent on 14 January 2010:Further to our recent discussion regarding flex leave … My current working hours generally involve 9-10 hour days Monday – Thursday (ie 7 am – 5 pm) with a 30 minute lunch break and frequent requests for flex leave on Fridays.This arrangement suits my personal circumstances as I reside out of town, share a car with my partner (who works a 4 day week and starts early) and it allows me to maintain a healthy work-life balance …For these reasons I would prefer to continue with current arrangements. Alternatively I would be interested in negotiating a 9-day fortnight that accommodates full-time hours. On 20 January 2010 Ms Pettiford wrote to her manager, Edna Salt, raising concerns about Mr Nugent’s conduct during a coaching session and asked to be removed from his supervision. On 20 January 2010 Mr Nugent spoke to Ms Salt about Ms Pettiford’s hours of work. Five days later, Ms Salt sent an email to staff about “inconsistencies in the use of ‘Flex time’”:Flexibility exists in the design and negotiation of regular hours between employees and their manager. A default option exists where agreement cannot be reached … Access to flex time is only available to employees with prior notice to and approval by the manager within operational requirements. Planned flex time with an automatic expectation that it will be approved, or where it has been taken on a regular pattern is not flex time … It really should become part of a negotiation about regular hours. Ms Salt and Mr Nugent met with Ms Pettiford on 4 February 2010 and agreed that on a trial basis Ms Pettiford could work a nine day fortnight, starting at 7 am, with a 60 minute break for lunch. At the end of that trial, Ms Pettiford asked that the arrangement be varied. Ms Salt rejected that proposal:Your proposal to continue long hours, reduce your lunch break to 30 minutes and to have a 4 day per week attendance pattern does not appear to acknowledge the principles that underline our agreement which I have restated below … I have considered your proposal. My take is that the agreement that we reached was a reasonable solution to the issues discussed about your working pattern when we met on 4 February … I am more comfortable in maintaining this schedule for now. I am also aware that I have a duty to ensure that your health is not compromised through inadequate breaks especially during long working days. We will review this agreement again at the end of a further four week period.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Pettiford applied to the Merit Protection Commissioner for review of that decision under s 33 of the Public Service Act 1999 (Cth). On 14 January 2011 a delegate of the Merit Protection Commissioner notified Ms Pettiford that the decision made by Ms Bagnall had been affirmed.Ms Pettiford notified of the decision to reappoint Mr Nugent as her supervisor Shortly after lodging her complaint, Ms Pettiford was removed from Mr Nugent’s supervision. Len Backhouse was appointed as her supervisor. In August 2010 Mr Backhouse was transferred and Jeanette Kluver appointed as Ms Pettiford’s supervisor. Ms Kluver continued in that role for about 12 months. On 15 August 2011 Mr Backhouse advised Ms Pettiford that he had decided to reappoint Mr Nugent as her supervisor. He gave as the reason for that decision a restructure within Centrelink placing Lithgow and Mudgee in the same service area. During that conversation Ms Pettiford asked for a mediation session between herself and Mr Nugent to be organised. On 24 August 2011 Mr Backhouse advised Ms Pettiford by email of his decision not to accede to that request:I have given consideration to the issues you raised on the 15 August 2011, around my moving you from Jeannette Kluver’s team back onto Paul Nugent’s team. As I stated at the time, it is a management decision that I need to make to consolidate all the sites in Zone 3 under a single span of control. I need to do this to provide a coordinated response to servicing issues across the Mudgee to Dubbo region and I have asked Paul to actively involve you in a service strategy for the Dubbo office as I believe that you have a substantial amount of experience and input to offer.I discussed with HR the issue that you raised about mediation. I formed the opinion that what was required was not so much mediation, but more a reintroduction and a renewal of your prior relationship with Paul. I was very mindful that I wanted this to be the start of a new, ongoing and professional relationship, not a rehash of things that have happened in the past.To that end I have asked Paul to contact you via email to arrange a suitable time to visit Mudgee … I have suggested to Paul that perhaps the Manager (or delegate) might be present but I am prepared to leave that to both your discretion as to whether it would add or subtract from the conversation. Mr Backhouse testified that when he advised Ms Pettiford of his decision it was apparent that she was apprehensive about the proposed change but appeared willing to “negotiate around the issue”. He agreed he was aware that 10 months earlier Ms Pettiford had raised with him concerns about participating in a conference Mr Nugent would also be attending. He admitted that he was aware that Ms Pettiford had lodged a complaint against Mr Nugent but claimed that he was unaware of the details of that complaint. Ms Pettiford testified that during the conversation with Mr Backhouse on 15 August 2011 she pleaded with him to look at her file and the reports addressing her complaint about Mr Nugent. Mr Backhouse said he consulted Centrelink’s human resources division and was told it was not necessary to read the reports as they related to events that had occurred 18 months ago. He denied as claimed by Ms Pettiford that she told him she did not think she could cope with working with Mr Nugent.

Ratio Decidendi

Legal Principle Established

Counsel for Comcare, Ms Ford, contends that while the Full Court in Drenth did not address whether the action taken by the ATO constituted “employment”, nonetheless the following passage from the judgement (at [22]), is supportive of the proposition that a distinction can be drawn between a decision about the employment relationship and one about some feature of the workplace or environment or otherwise connected to the employee’s environment: [A] decision that an employer is not prepared to allow an employee to return to work because of a medical opinion that the employee is then not fit and to require the employee to provide further evidence that he or she is fit, is quintessentially an action that is directed specifically to the employee. Such a decision does not affect him or her because it is some feature of his or her workplace or environment or is otherwise connected to the employee’s employment. Rather, it is a decision about the employment relationship itself. [emphasis added]Consideration The submission advanced by Comcare assumes that a neat distinction will always be able to be drawn between a decision concerning a feature of the workplace or otherwise connected to the employee’s employment and one about the employment relationship itself. There will sometimes be a degree of overlap between the two. The action of communicating a decision to terminate an employee’s employment is but one example. It could be characterised both as an “event” or “occurrence” in the course of the employment and a decision about the employment relationship itself. The offending letter advised Ms Pettiford of a number of things: Dr Burek’s opinion that she was fit for work and Centrelink’s decision to accept that opinion and to take steps to facilitate her return to work. While falling short of a direction or requirement to return to work, the effect of the letter was that subject to Ms Pettiford’s feedback and consultation with her treating psychiatrist, she was expected to return to work. While undeniably a decision about the employment relationship, the more difficult question is whether, as Ms Pettiford contends, it could be said to constitute “employment” within the definition of disease used in the Act. Kitto J in Federal Broom was not, as I understand Ms Pettiford to argue, referring to an incident or state of affairs relating to “work”, to use a neutral term, but to “some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed” [emphasis added]. That qualification was echoed by the comments made by Windeyer J: “some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed”. I accept as argued by Ms Pettiford that “but for” the fact that she was an employee of Centrelink she would not have been exposed to the decision about her return to work. However that is not the test imposed by s 5B of the Act to determine whether the necessary causal relationship exists between the claimed ailment and the employee’s employment. Rather the applicable test is whether the employee’s “employment” in the narrow sense employed by Kitto and Windeyer JJ, contributed to that ailment, or its aggravation.