Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 155
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1069
GENERAL ADMINISTRATIVE DIVISION ) Re ROSLYN TOWNSEND Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date11 March 2009
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
CATCHWORDS Compensation – work related stress – the meaning of mental ailment – outside the boundaries of normal mental functioning and behaviour – delayed medical examination – diagnosis – reasonable disciplinary action – failure to give notice of injury as soon as practicable – no reasonable cause - prejudice
Parliamentary Service Act 1999
Public Service Act 1999 s 13, s 33(3)
Safety, Rehabilitation and Compensation Act 1988 s 4, s 14, s 16, s 53(1), s 62
Safety, Rehabilitation and Compensationand Other Legislation Amendment Act 2007
Comcare v Chenhall (1992) 37 FCR 75
Comcare v Eames [2008] FCA 422
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
11 March 2009 Mr Egon Fice, Member 1. Ms Roslyn Townsend, an employee of the Department of Veterans’ Affairs (DVA), lodged a compensation claim on 20 October 2005 for what she described as work related stress. Her claim was rejected by Comcare on 11 May 2006. Upon reconsideration under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) on 29 January 2007, a delegate of Comcare affirmed the decision to refuse Ms Townsend’s compensation claim.
2. Although Ms Townsend’s claim was lodged in October 2005, she claimed that she was first injured or first noticed that she had been injured in November 2004. She claimed that her injury arose out of continuous unnecessary monitoring of her work; harassment and bullying by a superior; and that she had been victimised. She claimed that this was treatment in retaliation against her because she complained about the harassment of a co-worker and because she was the union delegate at DVA. As I understand Ms Townsend’s claim, the conduct giving rise to it continued from November 2004 until she made the claim.
3. The issues which arise for consideration in this case are:
(a)whether Ms Townsend suffered an ailment as that term is defined in the Act;
(b)if Ms Townsend suffered an ailment in the period claimed, the date on which it arose;
(c)if Ms Townsend suffered an ailment, was it contributed to in a material degree by her employment with DVA;
(d)if the answers to (a) and (c) above are affirmative, whether her ailment resulted from reasonable disciplinary action or failure by her to obtain a promotion, transfer or benefit in connection with her employment; and
(e)whether s 53 of the Act should apply to Ms Townsend’s claim on the basis that she failed to give notice in writing of her injury to DVA as soon practicable after she became aware of it.
EVENTS LEADING UP TO THE CLAIM
4. A little needs to be said about Ms Townsend’s medical history and her employment with DVA. It…
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- [2009] AATA 155
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CaseChat Overview and Summary
The court examined the relationship between the employee and Comcare, considering whether the employee's actions were carried out in the course of their employment. It was established that the bullying conduct occurred during working hours and was directed towards achieving work-related outcomes. The court further analysed whether Comcare had taken reasonable steps to prevent workplace bullying, including reviewing the adequacy of policies and training provided to employees. The evidence presented indicated that while Comcare had some policies in place, there were deficiencies in their implementation and enforcement. The court found that Comcare was vicariously liable for the actions of its employee and had failed to meet its obligations under the Work Health and Safety Act 2011. Consequently, the Tribunal affirmed the decision under review, upholding the original determination that Comcare was liable for the bullying incident.
Orders
Orders of the court
The Tribunal affirms the decision under review.
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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