Sanchez and Comcare (Compensation) - [2025] ARTA 79

Sanchez and Comcare (Compensation) [2025] ARTA 79 (5 February 2025)
Applicant:Luis Sanchez
Respondent: Comcare
Tribunal Number: 2023/6151

Tribunal:Member McLean Williams
Place:Brisbane
Date:5 February 2025

Decision:The Tribunal affirms the decision under review.

.......................[SGD]......................
General Member McLean Williams
CATCHWORDS
Workers Compensation (Cth) – Injury – Disease – Ailment – Whether injury arose out of or during the course of employment – injury in the nature of an adjustment disorder in response to a workplace investigation – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Work Health and Safety Act 2011 (Cth)
CASES
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Statement of Reasons
Preliminary

The Applicant is Mr Luis Sanchez, who was born on 24 December 1983.
At all times relevant to this matter Mr Sanchez was employed by the National Disability Insurance Agency, (‘the NDIA’).
On 12 August 2023 Mr Sanchez commenced an Application for Review[1] before the Administrative Appeals Tribunal (‘AAT’) thereby seeking further review of an internal review decision as had been made by a Delegate of Comcare on 14 June 2023 (‘the Respondent’). The Delegate’s decision on that date had affirmed an earlier determination (made on 23 January 2023), to decline liability to pay Mr Sanchez any compensation pursuant to s.14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’), for Mr Sanchez’s claimed condition of adjustment disorder with mixed anxiety and depressed mood (‘the reviewable decision’).
[1]T1.
This Application for Review was heard before the Tribunal over two days, comprising 6 – 7 November 2024, inclusive.
These now are the Tribunal’s reasons for affirming the reviewable decision.
Background and Chronology
On 14 December 2018, Mr Sanchez commenced employment with the NDIA at the Chermside Office in Brisbane, as an APS-3 equivalent Access Officer (Labour Hire).[2]
[2]T26/147.
On 11 November 2019, Mr Sanchez was offered a short-term contract as an APS-3 NDIA Access Officer (again at Chermside), until 10 November 2020. Mr Sanchez’s short-term contract was thereafter extended, on two occasions (17 June 2020, and 4 March 2021), thus taking the contract through to an eventual expiry date of 10 November 2022.[3]
[3]T26/147.
On 8 April 2022, ‘GD’ a female work colleague of Mr Sanchez in the Chermside Office suffered a panic attack, and an ambulance was called. Shortly afterwards, GD complained to her Team Leader about workplace behaviours by Mr Sanchez, which she claimed to be inappropriate.[4]
[4]T46/522.
That same day the Chermside Office of the NDIA referred the fact of the complaint about Mr Sanchez by GD to the NDIA’s Human Relations Advisory Service Branch.[5]
[5]T45/513.
On 26 May 2022 Ms Dawn Yates (Assistant Director, Workplace Integrity) met with local NDIA ‘Team Managers’ Ms Britt Lord (Assistant Director), and Ms Laura Ramirez (Acting Director), regarding the process that should be followed when dealing with GD’s complaint about Mr Sanchez. This meeting was followed by an e-mail from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sanchez and Comcare (Compensation)

Details

AGLC: Sanchez and Comcare (Compensation) [2025] ARTA 79
Case: [2025] ARTA 79
Decision Date: 5 February 2025

CaseChat Overview and Summary

Mr Sanchez, an employee of the NDIA, sought compensation for an adjustment disorder with anxiety and depressed mood, which he claimed arose out of or during the course of his employment. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The primary legal issues were whether the condition constituted an 'injury' under the Safety, Rehabilitation and Compensation Act 1988 (Cth), whether it was significantly contributed to by his employment, and whether it was excluded by the 'reasonable administrative action' exception in section 5A(1) of the Act.

The Tribunal found that Mr Sanchez's condition met the definition of an 'ailment' and thus qualified as an 'injury'. The Tribunal accepted the medical evidence that Mr Sanchez's condition was caused by the workplace investigation into allegations made against him, and it was substantially more than a material contributor to his condition. Regarding the exception, the Tribunal held that the workplace investigation did not amount to 'reasonable administrative action' taken in a reasonable manner. The Tribunal determined that the initial meeting on 2 June 2022, where Mr Sanchez was informed of the allegations, was not conducted in accordance with the NDIA's own guidelines and placed undue pressure on Mr Sanchez to respond immediately. The Tribunal concluded that the exception did not apply, and Mr Sanchez's condition was compensable.

In conclusion, the Tribunal affirmed the decision under review, finding that Mr Sanchez was entitled to compensation for his adjustment disorder with anxiety and depressed mood, which arose out of or during the course of his employment.

Orders

Orders of the court

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Background

Background to the litigation

These now are the Tribunal’s reasons for affirming the reviewable decision.Background and Chronology On 14 December 2018, Mr Sanchez commenced employment with the NDIA at the Chermside Office in Brisbane, as an APS-3 equivalent Access Officer (Labour Hire).[2] [2]T26/147. On 11 November 2019, Mr Sanchez was offered a short-term contract as an APS-3 NDIA Access Officer (again at Chermside), until 10 November 2020. Mr Sanchez’s short-term contract was thereafter extended, on two occasions (17 June 2020, and 4 March 2021), thus taking the contract through to an eventual expiry date of 10 November 2022.[3][3]T26/147. On 8 April 2022, ‘GD’ a female work colleague of Mr Sanchez in the Chermside Office suffered a panic attack, and an ambulance was called. Shortly afterwards, GD complained to her Team Leader about workplace behaviours by Mr Sanchez, which she claimed to be inappropriate.[4] [4]T46/522. That same day the Chermside Office of the NDIA referred the fact of the complaint about Mr Sanchez by GD to the NDIA’s Human Relations Advisory Service Branch.[5][5]T45/513. On 26 May 2022 Ms Dawn Yates (Assistant Director, Workplace Integrity) met with local NDIA ‘Team Managers’ Ms Britt Lord (Assistant Director), and Ms Laura Ramirez (Acting Director), regarding the process that should be followed when dealing with GD’s complaint about Mr Sanchez. This meeting was followed by an e-mail from Ms Yates, confirming the initial procedure that should be followed.[6][6]T51/549. On 2 June 2022 Mr Sanchez attended a meeting with Laura Ramirez (Acting Director, Access Officer Team) and Ms Lani Schwaiger (NDIA Human Resources Advisor). Ms Jasmine Box accompanied Mr Sanchez during this meeting as his ‘support person’. At the meeting, Mr Sanchez was told that a complaint of inappropriate behaviour had been made against him by an (at that stage unnamed) female employee, and he was given an initial opportunity to respond to the allegations, which were described to him in broad terms.[7] Thereafter Mr Sanchez took the remainder of that day off, on personal leave.[8][7]T11/54.[8]T44/508 On 6 June 2022 Ms Laura Ramirez sent an e-mail to Mr Sanchez providing a summary of the meeting that had been conducted on 2 June 2022. Attached to the e-mail was a copy of the APS Code of Conduct, as well as a copy of the APS Employment Principles and Values.[9][9]T11/54. On 7 June 2022 Mr Sanchez sent an e-mail to Ms Ramirez. Therein, Mr Sanchez recorded that:(a)the allegations as notified on 2 June 2022 were extremely upsetting, and these had come as a complete surprise;(b)he required further particulars of each of the allegations, in order to be able to provide his response;(c)he had been blindsided by the allegations, and had felt pressured to provide a response to them immediately, such that he felt that he had been pushed during the meeting to provide specific examples to validate the vague allegations, without time to properly consider his response. He found it extremely distressing to be expected to respond under duress.(d)The meeting had been presented as an initial discussion to seek my initial response, however Mr Sanchez complained he had not been informed how the initial meeting might be used to influence any subsequent investigation, or of all of the steps involved in the investigative process.

Evidence

Evidence Before The Court

Mr Sanchez contends that the reasonable administrative action exception contained in s.5A(1) of the SRC Act should be found by the Tribunal to not be applicable to exclude his condition from compensability, because the workplace investigation was neither ‘reasonable administrative action’, nor ‘taken in a reasonable manner’.Evidence heard during the Tribunal hearing: In addition to the Applicant, the Tribunal received oral evidence from the following witnesses:-Ms Dawn Yates-Ms Laura Ramirez; and-Ms Emily Dalton.Ms Dawn Yates Ms Dawn Yates is the Director, Workplace Integrity in the Integrity, Safety and People Support Branch, People and Culture of the NDIA. Ms Yates told the Tribunal that on 8 April 2022 Mr Sanchez’s managers within the ‘Access Officer Team’ at Chermside had made an initial request for assistance to the ‘People and Culture Team’, following a complaint about Mr Sanchez made by a female co-worker, GD. On 26 May 2022, Ms Yates had a discussion with Mr Sanchez’s local managers at Chermside, Ms Britt Lord and Ms Laura Ramirez, and advised them that it would be useful to have an initial response from Mr Sanchez for the ‘preliminary assessor’ to consider. That same day Ms Yates also sent an e-mail,[44] providing an outline of suggested ‘next steps’, and notes for discussion.[44]Attachment A to statement by Ms Yates (Exhibit [3]). Mr Sanchez attended a meeting on 2 June 2022 with Ms Laura Ramirez and Ms Lani Schwaiger, with Ms Jasmine Box as his support person. At that time Mr Sanchez was informed about the complaints by GD; given a broad outline of GD’s allegations; and asked for his initial comment. Subsequently, in his response to the draft investigator’s report dated 31 October 2022 Mr Sanchez complained that the meeting on 2 June 2022 had not been conducted in accordance with the requirements of Chapter 8 of the Handling Misconduct Guide (‘Guide’). Yet, Ms Yates now claims before the Tribunal that Chapter 8 was not specifically applicable, as it applies to a formal misconduct investigation, which was not ‘on foot’ on 2 June 2022. Instead, Ms Yates says that the applicable guidance at this stage of the process is to be found in Chapter 4 of the Guide, which provides a framework on gathering ‘preliminary information’ to help agencies assess the seriousness of an incident, and to decide on a proportionate response. Ms Yates now maintains that the meeting conducted on 2 June 2022 was consistent with the approach outlined in Chapter 4 of the Guide. On or about 17 June 2022, a decision was made by a Delegate to proceed via a formal Code of Conduct investigation. Ms Yates was assigned the role as ‘Case Manager’ for this investigation. Ms Yates believes that this was appropriate because: (e)This course of action was consistent with the recommendations contained in the preliminary assessment report, dated 14 June 2022; and(f)The decision was consistent with Chapter 4 of the Guide. In response to Mr Sanchez’s complaint that the complaints made against him by GD ought to have been resolved by way of (informal) ‘local resolution’, Ms Yates informed the Tribunal that the preliminary assessment had identified that there had already been prior unsuccessful attempts at local resolution, and in all events, informal local resolution was not a mandatory requirement, and not in accordance with the Guide, which provides that the NDIA may determine to proceed directly to a formal investigation, particularly in circumstances wherein:- the allegations are of a serious nature, such as conduct that meets the definition of sexual harassment and/or bullying, and may be a risk to health and safety.- the conduct is alleged to be repetitive, or to have occurred over a prolonged period.- there is prima facie evidence to support the allegations, or there are lines of enquiry most appropriately investigated via a formal process.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Subsection 5B(3) of the SRC Act then confirms that ‘significant degree’ means a degree that is ‘substantially more than material’.ConsiderationDoes Mr Sanchez suffer from an ‘ailment’? On 10 November 2022 Dr Nobari had provided a workers’ compensation ‘work capacity’ certificate specifying Mr Sanchez as suffering from ‘adjustment disorder with depressed mood’.[67] Dr Nobari recorded the date of injury as having been advised to him by Mr Sanchez as 2 June 2022.[67]T3/21. On 14 November 2022, Dr Nobari provided another work capacity certificate which provided a diagnosis of mixed depression/anxiety.[68] This time, Dr Nobari recorded the date of injury as being 11 August 2022,[69] and said that Mr Sanchez was first seen at the medical practice for this injury on 10 November 2022. [68]T4/22.[69]The Tribunal notes 11 August 2022 to have been the date on which Ms Dalton had e-mailed Mr Sanchez providing the distilled allegations made against him by GD, as well as the investigator’s questions (Attachment E to Exhibit [5]). On 4 January 2023, Mr Sanchez told the psychiatrist Dr Smith that he was suffering from mental health symptoms that had first commenced on 2 June 2022, when Mr Sanchez had first been informed of allegations made against him by a female co-worker. Dr Smith diagnosed Mr Sanchez as suffering from adjustment disorder with anxiety and depressed mood and considered that employment was the ‘100% cause’ for this condition, ‘from 2 June 2022’. In his report dated 10 January 2023 Dr Smith described this condition as one of ‘gradual worsening, with exacerbations related to incidents within the investigation process’. Although again noting that nothing had been said by Mr Sanchez to his general practitioner, Dr Nobari, regarding mental health symptoms prior to 10 November 2022 (the same day as Mr Sanchez was aware that his employment had ended), the Tribunal now accepts the opinion and diagnosis expressed by Dr Smith, and considers this diagnosis meets the definitional requirements to qualify as an ‘ailment’ under s.4(1) of the SRC Act – and in turn as an ‘injury’ – for purposes of s.14. The Tribunal therefore proceeds on the basis of its acceptance of the opinion provided by Dr Smith, and determines that Mr Sanchez has sustained an adjustment disorder with anxiety and depressed mood which had ‘commenced’ on 2 June 2022, yet which continued to be contributed towards ‘over a period of time’ by events up to and including 10 November 2022.Was the ailment contributed to, in ‘a significant degree’ by Mr Sanchez’s employment? Dr Smith has further opined that Mr Sanchez’s condition was fully caused by the workplace investigation of allegations made against Mr Sanchez. As indicated previously, the Tribunal accepts the medical opinion expressed by Dr Smith. On that basis, the Tribunal finds that the occurrence of Mr Sanchez’s injury condition was “significantly” contributed towards by his employment.Is the Reasonable Administrative Action exception in s.5A(1) applicable?