Rye and Comcare (Compensation)

Case [2018] AATA 4658

Rye and Comcare (Compensation) [2018] AATA 4658 (20 December 2018)

Division:GENERAL DIVISION

File Number(s):      2017/5999

Re:Katherine Rye

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President

Date:20 December 2018

Place:Sydney

1.    The reviewable decision, being the decision of Comcare made 14 September 2017 denying compensation for the applicant’s injury, is set aside.

2. In substitution, it is decided that the Respondent is liable to pay compensation for the applicant’s injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988.

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

The Hon. Dennis Cowdroy OAM QC, Deputy President

CATCHWORDS

COMPENSATION – whether injury occurred in the course of employment – whether the activity was associated with the employee’s employment – whether applicant was engaged in fulfilling duties for employer when injury was sustained – whether employer actively encouraged the employee to participate in the activity – netball game – injury to right knee – NAIDOC week event – ceremonial leave – decision set aside

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Comcare v Adrian John Mather and Irene Patricia Mitchell [1995] FCA 1216

Comcare v PVYW (2013) 250 CLR 246
Commonwealth v Oliver (1962) 107 CLR 353
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Gregory v Comcare Australia (1997) 72 FCR 196
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Hill and Comcare [2018] AATA 670
Kavanagh v The Commonwealth (1960) 103 CLR 547
Kelly and Australian Telecommunications Corporation [1991] AATA 720
Mozny and Comcare [2018] AATA 1966
O’Loughlin v Linfox Australia Ltd and Anor (2015) FCA 1000; (2015) 235 FCR 164
Prieto and Comcare [2010] AATA 546
Roncevich v Repatriation Commission (2005) 222 CLR 115
Saunders and Comcare [2011] AATA 238
Wheele and Comcare [2010] AATA 200

Whittingham v Commissioner for Railways (WA) (1931) 46 CLR 22

REASONS FOR DECISION

The Hon. Dennis Cowdroy OAM QC, Deputy President

20 December 2018

INTRODUCTION

  1. In her application dated 10 October 2017, the applicant (“Rye”) seeks review of a decision of the respondent made 14 September 2017 which affirmed a primary determination dated 28 July 2017 which found that the applicant did not suffer an injury arising out of her employment or in the course of her employment.

    FACTS

  2. The applicant was born on 16 July 1980, and is of Aboriginal descent. She joined the Department of Human Resources (DHS) on 9 February 2009 and was engaged to work as an APS 4 Customer Service Officer. At the relevant time she was working at the Mayfield Service Centre of DHS, near Newcastle, New South Wales. The Applicant sustained an injury during a sporting event in the circumstances referred to hereunder.

    Support for in Indigenous Employees of DHS

  3. Each year an organisation known as National Aboriginal and Islanders Day Observance Committee (NAIDOC) conduct a week-long celebration of the history, culture and achievements of Aboriginal and Torres Strait Islander peoples.

  4. DHS strongly supported such peoples. It published…

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Details
AGLC
Rye and Comcare (Compensation) [2018] AATA 4658
Case
[2018] AATA 4658
Decision Date

CaseChat Overview and Summary

The applicant, Rye, sought review of a decision by Comcare that she had not suffered an injury arising out of or in the course of her employment. Rye sustained an injury to her right knee during a netball game organised as part of NAIDOC Week celebrations. The Department of Human Services (DHS), Rye's employer, actively supported and encouraged staff participation in such events, including the NAIDOC Week celebrations, as outlined in its Employees Plan. The Deputy President of the Administrative Appeals Tribunal was required to determine whether the netball game was an activity associated with Rye's employment and whether her injury sustained during this activity was compensable under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

The Tribunal considered whether the netball game could be characterised as an activity associated with Rye's employment. Evidence indicated that DHS encouraged staff involvement in NAIDOC Week events, and Rye was nominated to be part of the NAIDOC/Reconciliation Committee. Furthermore, Rye's supervisor had encouraged her participation in the netball game, suggesting it would be a good opportunity to represent DHS and for networking. The Tribunal also noted that Rye was considering applying for a role as an Indigenous Services Officer, which involved liaison with the Aboriginal and Torres Strait Islander community, and that the netball game could be seen as a networking opportunity relevant to this career aspiration. The Tribunal applied the principles established in cases concerning injuries sustained during activities associated with employment, focusing on the employer's encouragement and the nexus between the activity and the employee's duties or career advancement within the organisation.

The Tribunal found that Rye's injury arose out of, or in the course of, her employment. It determined that the injury was sustained while Rye was temporarily absent from her usual place of work undertaking an activity associated with her employment, as defined by section 6 of the SRC Act. Consequently, Comcare was liable to pay compensation for the injury pursuant to section 14 of the SRC Act. The reviewable decision of Comcare denying compensation was set aside, and it was decided that Comcare was liable to pay compensation for Rye's injury.

Orders

Orders of the court

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Background

Background to the litigation

In her application dated 10 October 2017, the applicant (“Rye”) seeks review of a decision of the respondent made 14 September 2017 which affirmed a primary determination dated 28 July 2017 which found that the applicant did not suffer an injury arising out of her employment or in the course of her employment.FACTS The applicant was born on 16 July 1980, and is of Aboriginal descent. She joined the Department of Human Resources (DHS) on 9 February 2009 and was engaged to work as an APS 4 Customer Service Officer. At the relevant time she was working at the Mayfield Service Centre of DHS, near Newcastle, New South Wales. The Applicant sustained an injury during a sporting event in the circumstances referred to hereunder. Support for in Indigenous Employees of DHS Each year an organisation known as National Aboriginal and Islanders Day Observance Committee (NAIDOC) conduct a week-long celebration of the history, culture and achievements of Aboriginal and Torres Strait Islander peoples. DHS strongly supported such peoples. It published an Employees Plan 2016-17 in which the Secretary referred to the implementation of a number of measures to support “our Aboriginal and Torres Strait Islander peoples joining the Department and employees who are proud to let the Department know they are Indigenous Australians”. The message concluded with an expression of gratitude to such employees for the development of the plan and continued: “[we] encourage everyone in the department to think about how they can actively support and contribute to the objectives it contains”. Part of the plan contained a heading entitled “THEME 4-Workplace Culture” and stated, inter alia:Commitment: Encourage and support all staff involvement in significant events and celebrations for Aboriginal and Torres Strait Islander Peoples such as NAIDOC week, National Reconciliation Week and Sorry Day, including local community celebrations and national events. On 7 July 2017 a newsletter was published by North NSW Daily (entitled “Special Edition –NAIDOC 2 – 9 July”), which included the following:The day also hosts the annual all-Important Netball competition. Tuggerah Smart Centre’s Tracy Reid three teams from Tuggerah Smart Centre which was great to see Departmental representation, well done Tracy [sic]. The Daily is described as the “Zone North NSW SharePoint”. It appears to be a publication of the Zone North NSW group which is in some way associated with DHS. If not associated, then it is plain that employees of DHS were provided with copies of the newsletter. Within DHS a North NSW NAIDOC Week Committee was formed as the next celebration week was planned for July 2017. The applicant was nominated by DHS to be part of the NAIDOC/Reconciliation Committee on 1 February 2017. Meetings of the NAIDOC Week Committee were held in the normal working hours of DHS, starting at 9 AM and finishing at 10 AM initially on a monthly basis and as the celebration week approached, on a weekly basis. Minutes were recorded for each meeting, listing attendees, a chairperson, and other details. A meeting was held early in 2017 and the second meeting was held on 27 April 2017. Minutes of such meetings were maintained on letterhead of the DHS.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that the Tribunal finds that the applicant’s injury arose out of, or in the course of the applicant’s employment within the meaning of “injury” is defined in s 5A of the SRC Act; that the injury was sustained whilst the applicant was temporarily absent from her place of work undertaking an activity associated with her employment as defined in s 6; and, accordingly, Comcare is liable to pay compensation for such injury pursuant to s 14.DECISION The reviewable decision, being the decision of Comcare made 14 September 2017 denying compensation for the applicant’s injury, will be set aside. In substitution, it will be decided that the Respondent is liable to pay compensation for the applicant’s injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988.

Ratio Decidendi

Legal Principle Established

Under the heading “Agreed Actions from Today’s Session”, the following is relevantly stated: Kate to code ceremonial leave in ESS and send Tracy a reply email with shirt sizing’s [sic] for NAIDOC netball.Preparation for NADIC Celebration Week On 10 January 2017, Tracy Reid, a DHS employee of the Age & Disability Processing section at the Central Coast Smart Centre, forwarded an email concerning the NAIDOC celebrations to various employees including the applicant’s supervisor, Joshua. The applicant states that either on this day or the following day, Joshua spoke to her and told her that DHS were looking to have staff participate in the celebrations. In particular, the applicant states that Mr Jones said words to the effect of “DHS are looking to put together a netball team as in past years”. The applicant also states that Joshua informed her that because of her Aboriginal heritage, it would be a good way not only to represent DHS but would be a good opportunity for herself to use the game as a networking event for her career advancement. DHS operates in various zones of the Central Coast of New South Wales, and one such Service Centre was the Mayfield Service Centre. Whilst the applicant would usually attend events in the Newcastle region, she would not usually attend events outside of the area. The applicant stated that at about 10 January 2017 she was considering applying for a more senior role in DHS, namely the role of Indigenous Services Officer (ISO). Such a role is one principally of liaison for DHS and the Aboriginal and Torres Strait Islander community. The role involves the ISO travelling to communities, schools and local councils to speak about DHS services and assist the community in understanding the use of the services. An ISO is also required to assist DHS customers at the office with any issues they are concerned with. The applicant states that, following such request, she informed Joshua she would participate in the netball game in the NAIDOC week of celebrations. An email sent by the applicant on 11 January 2017 to Joshua relevantly states:Subject: NAIDOC netball team Central Coast 5/7/2017HelloI would be interested in joining in on the NAIDOC Netball team please. It should be noted that, in oral evidence, Joshua disputed the applicant’s claim that he stated that he wished the applicant to participate in a “DHS netball team”. However, he agreed that he may have used the words “to participate in a team made up of DHS members” or similar words. Further, an email was sent by Joshua to the applicant dated 10 March 2017 in which Joshua provided instructions to the applicant concerning the application for cultural leave. In this email, Joshua made the following comment regarding cultural leave for the netball game:NAIDOC DHS Netball Team @ Bakers Park Wyong By email dated 28 April 2017, Jason Bourke, a DHS employee, sent an email to certain members of DHS concerning funding and ideas for NAIDOC week. The email advised that funding was available for “outward facing or external events”.