Sillett and Comcare (Compensation)

[2019] AATA 4305

Sillett and Comcare (Compensation) [2019] AATA 4305 (23 October 2019)

Division:GENERAL DIVISION

File Number(s):      2018/5632

Re:Alan Sillett

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:23 October 2019

Place:Sydney

The decision under review is set aside and the matter is remitted to the Respondent for further consideration with the direction that Comcare is liable to pay compensation in respect of Mr Sillett’s psychological condition, Specific Phobia, Situational that was contributed to, to a significant degree, by his employment.

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

Dr I Alexander, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for compensation – psychological condition contributed to a significant degree by employment – exclusionary provision – whether administrative action in respect of employee’s employment – where Applicant transferred to “back of house” duties due to business requirements – where return to face to face duties due to operational demand – action contributing to psychological condition was operational not administrative – decision set aside and remitted

LEGISLATION

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

CASES

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Lees and Comcare [1999] FCA 753

REASONS FOR DECISION

Dr I Alexander, Senior Member

23 October 2019

1. Prior to his resignation on 2 March 2018 Mr Sillett had been an employee of the Department of Human Services (DHS) since January 1992. He was employed at the Bathurst Service Centre (Centrelink)[1] as a Customer Service Officer (APS4).

   [1] The Centrelink brand name came into effect in late 1997. In May 2019 DHS was renamed Services Australia.

2. On 18 May 2018 Mr Sillett lodged a claim for compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). He claimed that he suffered a psychological condition, “Adjustment Disorder with anxious mood secondary to workplace stress exposure” and stated that the condition was a result of “customer service role face to face contact”. Mr Sillett reported that he first noticed the condition and first sought medical treatment on 16 December 2016.

3. In an initial decision, dated 23 July 2018, Comcare denied liability to pay compensation on the basis that Mr Sillett’s claim for compensation fell within the exclusory provisions set out in section 5A of the SRC Act.

4. In the reviewable decision, dated 11 September 2018, Comcare affirmed the initial decision to deny liability to pay compensation.

5. It was conceded in the reviewable decision that Mr Sillett’s psychological condition, “Social Phobia, Situational”, was contributed to a significant degree by his employment, but that at least one of the contributory factors could be “reasonably categorized as reasonable administrative action undertaken in a reasonable manner” and, therefore, the exclusory provisions set out in section 5A of the SRC Act would apply.

6. At the hearing Mr Sillett, who attended in person and was self-represented, sought review of the 11 September 2018 decision.

   RELEVANT STATUTORY PROVISIONS

7. Section 14 of the SRC Act provides that 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.

8. “Injury” is defined in subsection 5A(1) to mean:

   (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.

9. Subsection 5A(2) provides:

   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.

10. “Disease” is defined in section 5B:

    1In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    (c)that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    2In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    3In this Act:

    significant degree means a degree that is substantially more than material.

11. “Ailment” is defined in s 4(1) :

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    ISSUES

12. It is agreed that Mr Sillett has suffered an “ailment” as defined in section 4 of the SRC Act and that the “ailment” was contributed to, to a significant degree, by his employment.

13. Therefore, Mr Sillett has suffered a “disease” within the meaning of 5B(1) of the SRC Act and, prima facie, Comcare is liable to pay compensation pursuant to section 14 of the SRC Act.

14. However, the Respondent contends that Mr Sillett’s “disease” is excluded from the definition of “injury” within the meaning of section 5A(1) of the SRC Act because his “disease” was suffered as a result of “reasonable administrative action undertaken in a reasonable manner in respect of his employment” and, therefore, Comcare is not liable to pay compensation.

15. Therefore, the definitive issue before the Tribunal is whether Mr Sillett suffered his “disease” as a result of reasonable administrative action undertaken in a reasonable manner in respect of his employment with DHS.

    Mr Sillett’s evidence

16. In a brief written statement dated 20 February 2016,[2] Mr Sillett stated, inter alia, as follows:

    I wish to lodge this in regard to my fitness for duty assessment. Since working in the back office, without any face to face customer contact, my overall health and wellbeing has vastly improved. I have not had any personal leave during this time, which has been over six months. My current medical conditions (Polymyalgia Rheumatica and Temporal Arteritis) were diagnosed around the time I was notified of a move back to the front office in the new year. This was approximately late November/ early December 2016…

    [2] This date is clearly incorrect, more likely 20 February 2017. On 16 December 2016 Dr Rana, GP, confirmed the diagnosis of polymyalgia rheumatica.

17. In a written statement dated 21 May 2018, Mr Sillett stated, inter alia, as follows:

    For the past several years whilst working in the front office I started noticing feelings of anxiousness and stress…It was not until I started working in the back office in August 2016, which I really enjoyed, that I noticed that my arthritis and general health had vastly improved…In late November 2016 I was advised that I would be returning to work in the front office and felt those feelings of anxiety and stress again…I made an appointment with my GP…I was referred for a blood test to confirm my doctor’s diagnosis of polymyalgia rheumatica and temporal arteritis …my doctor recommended I remain in the back office while on medication for these conditions [emphasis added]

18. In a handwritten letter, posted 8 August 2018, Mr Sillett stated, inter alia, as follows:

    I would like this decision reviewed…the options offered were travelling to Orange or Lithgow to work using Workload Manager which can be done remotely from any location…this was purely a staffing decision…I am unable to travel when my polymyalgia rheumatica flares up as I cannot move my neck and arms to drive safely and the round trip to either Orange or Lithgow is 120 kms. Another option offered was to use the balance of my personal leave which was approx. 4 months. Due to the ongoing bullying and harassment, involving constant refusal to accept recommendations as per medical reports, I felt I couldn’t deal with another 4 months of stress and anxiety to myself and my wife and had no option but to resign. The majority of medical reports recommended I remain working in the back office to have the best chance of recovery, yet the only diagnosis taken into account was that of Dr Robertson who I saw on 7/7/18 four months after I resigned…

19. In cross examination at the hearing Mr Sillett stated that he had worked at the Bathurst Service Centre for about 15 years and has always worked at the “front of office” until he was assigned to the “back office” in 2016.

20. In response to a question with respect to his decision to resign, Mr Sillett stated as follows:

    Well, I was just sick of the whole process, and I thought in my head morally I couldn’t just stay at home on sick leave, even though I was more than likely entitled to. I mean, my condition is long-term, so it would be hard to be resolved in the four months I was off on extended sick leave other than the five months it already had…So in the end I had just had enough and I just mentally was not able to cope with it. So, I decided to resign.

21. The issues raised during the remainder of cross examination were, largely, already covered by the documentary evidence provided to the Tribunal and did not raise any other pressing issues.

    MEDICAL EVIDENCE

    Dr Brown – consultant occupational physician

22. In a report dated 27 February 2017, Dr Brown noted that Mr Sillett has been working with Centrelink for about 25 years and that most of his work has been in “reception or servicing customers” which has always been “‘face to face’ work”. He noted that about six months ago Mr Sillett was rotated from face to face work to some “back of house” work which he reported as “essentially the same” but done “electronically or by telephone” without the clients being present.

23. Dr Brown also noted that Mr Sillett reported that the rotation had initially been intended to be for only a few months but, because he got sick about the time he was meant to return to front of house, he was allowed to continue at back of house for a further six months.

24. In his summary and assessment Dr Brown stated, inter alia, as follows:

    …In November 2016 he developed what he thought initially was an exacerbation of his rheumatoid arthritis but rapidly appeared to be polymyalgia rheumatic…and symptoms consistent with temporal arteritis. He was then treated appropriately with high dose steroids with a tapering dose regime. Since starting steroids he has improved dramatically and now feels extremely well.

    Mr Sillett report his issue now is whether he is able to return to front of house or if he can stay at back of house…he is anxious about returning to front of house because he has come to like the back of house activity.

25. In a Fitness for Duty Assessment Dr Brown stated, inter alia, as follows:

    The issue may be whether Mr Sillett is able to go back to working in his front of house face to face role. Physically I consider Mr Sillett is well and able to manage all the tasks of his job description. He is reluctant to go back to work face to face because he considers it more stressful and he considers that his polymyalgia rheumatica was brought on by the stress of the possibility of going back to his front of house role…I consider that Mr Sillett is very well at present and should be able to undertake at least a trial of returning to his front of house duties if that is operationally necessary. If it were operationally possible for him to work back of house indefinitely then that would be simple but otherwise…this could be done in a graduated manner such as doing one day a week and increasing by one day every fortnight.

26. In a supplementary report, dated 22 May 2017, Dr Brown stated that:

    It is possible that if Mr Sillett has anxiety, it is related to his high dose steroids and should resolve as his steroid dosage is slowly tapered off. As I indicated in my initial report, if it were operationally possible for Mr Sillett to work back of house indefinitely, that would appear a simple solution to the current situation.

    Dr Frukacz – consultant psychiatrist

27. In a report dated 15 November 2017 Dr Frukacz noted that Mr Sillett reported that since working at Centrelink he has always experienced some degree of anxiety because “whenever someone came into work, you would always worry what they would do”, and that this was particularly the case when “working in the front office”.

28. Mr Sillett told Dr Frukacz that, in August 2016, when he started working in the back office with no direct client contact, he “really enjoyed it” and did not have a day off sick until June 2017. Mr Sillett also said that in November 2016 he was first told that he would have to return to the front office, but it was put on hold until September 2017. In September 2017 when he was again told he had to return to front office Mr Sillett went to see his GP who certified him unfit for work.

29. Mr Sillett also told Dr Frukacz, inter alia, that:

    …at the moment, he is always anxious…cannot stop thinking about the situation at work…has trouble getting off to sleep, constantly thinking about work and will awake thinking about work…has trouble concentrating and experiences poor memory…also has somatic symptoms.

30. Dr Frukacz made a diagnosis of “generalised anxiety disorder” with a differential diagnosis of “Adjustment disorder with anxious mood” and stated that Mr Sillett’s anxiety is “related to the circumstances at work” and “ideally he should return to work in the back office”.

    Dr Takyar – consultant psychiatrist

31. In a report for the purpose of a fitness for duty assessment dated 12 January 2018, Dr Takyar recorded a history similar to the history provided to Dr Brown and Dr Frukacz.

32. Dr Takyar noted that Mr Sillett had ceased work in September 2017 “as he felt no longer able to continue working” and concluded that “he presents with a history of what appears to be generalised anxiety disorder and adjustment disorder with depressed mood” and then added, inter alia, as follows:

    Based on his presentation, his most likely outcome where he returns to work in a longitudinally successful manner would be in placing him in a back-of-house role. I anticipate that his future capacity if working in a front-of-house role would be one reflective of difficulty with absenteeism, difficulty functioning at work and I also suspect that his capacity would be potentially lowered in terms of hours. I foresee that returning to work in a back-of-house role is likely to be most successful and he is likely to be able to work full-time in this role without much difficulty. His GP was of the same opinion.

33. With respect to treatment, Dr Takyar added that “ongoing psychiatric treatment may improve his condition” but that it is “relatively unlikely that he would be able to return to full-time work in a front-of-house role”.

    Dr Robertson – consultant psychiatrist

34. In a report, dated 7 July 2018, Dr Robertson noted a history similar to the history provided in the earlier psychiatric assessments with no significant differences. He did note, however, that Mr Sillett had “retired in March 2018 while on sick leave”.

35. Dr Robertson expressed the opinion that the correct diagnosis is of a “specific phobia, of situational nature relating to working in the front office of his former workplace”. He noted the formal diagnosis with respect to the diagnostic criteria in DSM-5 as Specific Phobia, Situational (300.29).

36. Dr Robertson described Mr Sillett as “a worrier” but was not convinced that he could be diagnosed as having a generalised anxiety disorder because his anxiety “was firmly and solely related to having to work in the front office of his former workplace”.

37. Dr Robertson stated that, “rather than treating his specific phobia, the only thing that would have made any sense would be to employ him in a position where he did not have to deal with members of the public, who were frequently aggrieved and angry and potentially dangerous”. He stated that treatment using psychological means would be very prolonged and would carry “only a very modest chance of success” and the use of medication would be “unlikely to allow him to work comfortably in the front office”. He also added that, in his opinion, “a graduated return to work would certainly fail”.

38. Dr Robertson’s comments in response to various specific questions posed by Comcare included the following:

    ·Mr Sillett has an exaggerated fear of harm coming to him as a result of working in the front office. This fear is provoked by having to deal with angry clients who are prone to verbal abuse and threats.

    ·The nature of his employment at the front office, having to deal with angry, abusive and threatening clients, has been a factor which has generated his psychiatric disorder.

    ·He is able to work without anxiety when he is working away from the front of the house.

    ·He does not require “treatment” as such; he simply needs to avoid the situation which provokes severe anxiety.

    ·He would have been able to work, or still could work, in any situation which did not involve contact with hostile members of the community.

    Dr Samuell – clinical and forensic psychiatrist

39. In a report, dated 27 March 2019, Dr Samuell stated that it was likely Mr Sillett “first suffered from anxiety, a specific phobia when he was asked to return to the front desk” and essentially agreed with the assessment and opinions expressed by Dr Robertson.

40. Additional relevant comments by Dr Samuell, with respect to Mr Sillett, are as follows:

    ·When given the opportunity to work in the back office, he took that and found that he felt generally less stressed and his physical conditions were more manageable.

    ·Since his resignation from the Department of Human Services, he has actively sought work elsewhere but has been unsuccessful.

    ·His mental state examination was normal. He is not under the care of a psychologist or counsellor and is not taking psychotropic medication. He has no current significant complaints of a psychological nature. I concluded he is currently mentally well.

    ·Mr Sillett has indicated to others that he has been a constitutionally anxious person. He had not however, sought any psychological assistance nor claimed symptoms of anxiety until he was asked to return to the front desk in his usual role.

    ·I accept that front desk work would have been stressful, however the relationship between stress and anxiety is complicated. He was not experiencing an anxiety disorder while working at front desk. It was not until he noticed that his physical complaints were better managed working in the back office that he found the prospect of returning to the front desk stressful and he developed a specific phobia. I did not identify any other causes of his specific phobia.

    ·The temporal relationship between the directive that he return to the front of house duties to the onset of his symptoms seemed to me to be compelling. It seems unlikely that he would have developed a specific phobia were it not for that directive.

    OTHER EVIDENCE

1. In a letter dated 26 June 2018 Ms Kerr, Assistant Director Face to Face Services, DHS stated, inter alia, as follows:

   Prior to retiring in early 2018, Mr Sillett was employed as an APS 4 Customer Service Officer with the Bathurst Service Centre, initially joining Centrelink in January 1991. Mr Sillett’s role consisted for the most part, face to face customer service and associated administrative tasks. Prior to 2016 Mr Sillett was a competent employee meeting all the necessary requirements of his role and considered very experienced.

   Between August 2016 and December 2016 due to business requirements, Mr Sillett was assigned back-office duties that did not require him to perform face to face customer contact…Mr Sillett’s manager met with Mr Sillett and advised him that he would be required to return to his normal front of house role in the New Year. Importantly, the reason for the transition back to his previous front of house/face to face role was due to the back of house work no longer being needed to be completed from Bathurst…[emphasis added]

   In mid-December 2016, Mr Sillett approached his manger and had a discussion with him concerning his health. Mr Sillett advised that he felt he needed to stay in back-office duties due to his condition…

   Mr Sillett’s situation was discussed with the People Support team and a health assessment was arranged to determine how best to support Mr Sillett in light of this new information. …..

   In July 2017, a rehabilitation plan was written to provide a framework on which to test Mr Sillett’s capacity for face to face customer service. The plan was developed within the recommendations of medical advice received to date.

   In September 2017, discussions were held with Mr Sillett regarding the transition back to his normal role and explanation as to why the back of house function no longer existed.

   Mr Sillett provided a medical certificate and availed of personal leave from 20^th of September 2017 until mid-November. Mr Sillett was expected to return on the 15^th November however produced a further certificate.

   Due to limited information on how to support Mr Sillett within the Bathurst site, a further fitness for duty was arranged with Dr Ash Takyar, consultant psychiatrist, in January 2018…

   Following the report, the department provided the following options to Mr Sillett:

   1To transition to his normal role, he would be provided support from his manager, case manager and external consultant.

   2Mr Sillett could undertake back of house duties at an alternate site such as Lithgow or Orange where duties were available.

   3If Mr Sillett is not medically able to accept either option 1 or 2 he would need to remain on personal leave due to non face to face work availability in Bathurst.

   After a conversation with the manager at the time, Mr Sillett chose to retire.

2. In a Witness Statement, dated 20 August 2019, Ms Barrett, Regional Manager - Services Australia (DHS or Centrelink) stated, inter alia as follows:

   3 I note that we no longer use the terms ‘Front of House’ or ‘Back of House’ to distinguish the types of employment duties at service centres. All staff members are rostered all-round with regular rotation of duties.

   5 I recall that Mr Sillett was a highly capable and diligent worker…he had no adverse issues regarding his performance…

   6 Services Australia estimate the level of foot traffic for each day in advance, which is reasonably accurate. Based on this estimate, we decide how many and where to allocate staff members within the service centre. At the relevant time, I was informed that the Australian Public Services were not hiring additional staff. It was therefore necessary to utilize the existing resources by allocating them to the area in demand. In a service centre the area of demand has always been the front where the customers physically present…[emphasis added]

   7 I confirm that I had a presentation to all staff members about the organization’s strategic directions and changes on how virtual customer workloads would be managed. It required the widening of responsibilities and functions of all staff across the Service Zone and the disbanding of the arrangement where staff solely performed the Back of House duties. [emphasis added]

   8 The changes required each regional centre to utilize their existing staff to service the customers who physically present at the centres with cessation of the Back of House roles…[emphasis added]

   10…I confirm this change of work occurred in many locations at similar times. I also confirm that the reasons for the switch were due to operational demand reasons which required Service Zones enabling customer demand to be met in Service Centres where there was not the staff capacity to allow any role which did not include customer facing work. [emphasis added]

3. In a Witness Statement, dated 5 August 2019, Ms Wade, Line Manager DHS, stated, inter alia, as follows:

   3 I was the Line Manager of Mr Sillett after my return from maternity leave in February 2017. At that time, he was working in a team processing sickness benefits which only involved occasional contact with customers. He remained in this team until he commenced leave in August 2017.

   4 I personally assess that Mr Sillett was an experienced, diligent and hard-working employee.

   6 The normal practice within the Department in 2017 was that if staffing in the front of house team exceeded the workload, some staff were placed in a back of house team to perform processing work under my supervision. Mr Sillett was in my team to assist with the sickness benefits claims in the back of house. If the front of house team needed an additional person, Mr Sillett would have been moved back to the front to fill the vacancy. I describe that it was a fluid team staffing situation. The staffing level was subject to change from month to month. [emphasis added]

   7 I also note that depending on the staffing levels a person may stay in the back of house for a week or up to a year. Staff sometimes moved into this role if they had physical injuries or if they needed a change from the front of house for various reasons.

   9 The back of house role was not a fixed position…the back of house teams ceased in September 2017 with all staff returned to front of house operations. [emphasis added]

   CONSIDERATION

4. The Respondent submits that the diagnosis of Drs Robertson and Samuell should be preferred and that Mr Sillett suffered a “Specific Phobia, Situational” and not “Generalised Anxiety Disorder”, as had been submitted by Mr Sillett.

5. Although for present purposes a precise psychiatric diagnosis is not required, on my reading of the available evidence, I am satisfied that the preferred diagnosis of Mr Sillett’s psychological condition is “Specific Phobia, Situational”.

6. The Respondent concedes, and the Tribunal agrees, that Mr Sillett’s psychological condition was contributed to, to a significant degree, by his employment.

7. In the Respondent’s Statement of Issues, Facts and Contentions (SoIFC) it is contended that “the decision to return Mr Sillett to front of house duties represents a failure to retain (obtain)[3] a reclassification or transfer and therefore an administrative action pursuant to section 5A(2)(f) of the SRC ACT”.[4]

   [3] SoIFC at 4.3.

   [4] Section 5A(2)(f)…failure to obtain promotion, reclassification, transfer, or to retain a benefit…

8. At the hearing, counsel for the Respondent submitted stated, inter alia, as follows:

   Mr Sillett had spent a lot of time out the front, and there was a decision made that that would rotate him through the back of office and in circumstances where they did so, it was the expectation that at some stage into the future, he would return to the front of office. That ultimately transpired - in an administrative sense, at least - in that his time at the back came to an end and he was advised to go out to the front of office…Now, that’s the administrative action…[emphasis added]

9. These submissions raise the following questions:

   (i)was there an action that contributed to Mr Sillett’s psychological condition? and if so;

   (ii)was the action an administrative action within the meaning of the SRC Act? and if so;

   (iii)was it an administrative action in respect of Mr Sillett’s employment?

10. In order to assist with these questions, it is useful to consider the decision of the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 (8 March 2012), which was constituted by their Honours Gray, Rares and Tracey JJ.

11. Justice Gray stated, inter alia, as follows:

    27 With this in mind, it is necessary to return to the words of the exclusion in s 5A(1) of the SRC Act. For present purposes, it is appropriate to disregard the references to reasonableness and to focus on the other elements of the exclusion …

    28 The central word in the exclusion is the noun “action” …..That which is excluded from the definition of “injury” is a condition …..that has a causal relationship with ….action. The action itself is qualified in two ways. It must have a relationship with employment, not just of any person but of a particular person (the employee’s”). The other qualification of the word “action” is by means of the adjective “administrative…”

    29 …Whether the necessary causal relationship exists will be a question of fact in each case…

    30 The limits of the exclusion therefore appear to lie in the word “employment” and the word “administrative”. In the context of the exclusion the word “employment” appears to be used in the sense of the “action or process of employing; the state of being employed” or “the act of employing”…rather than “that on which one is employed”…The history recounted in the Explanatory Memorandum to the amending Bill, and the identification in that Explanatory Memorandum of the mischief to which the amendment was directed, support this proposition. It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer [emphasis added]

    31 The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it related to the activities or business of the institution or enterprise in which the employee is employed. Thus an instruction to perform work in a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative action”, but as operational action with respect to the employee’s employment…

12. Their Honours Rares and Tracey JJ, in a joint decision stated, inter alia, as follows;

    57 However, in contrast to a disease that was contributed to by, or an injury or an aggravation that arose out of, or in the course of, the employee’s employment, the exclusion in s 5A(1) applied to action taken in respect of that person’s employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment… [emphasis added]

    60 The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. The qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstances that the Act uses to impose liability, namely an action or circumstances that arises out of, or in the course, of the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists the person’s employment. That is, the action must be something different to the duties and incidents of that employment or as s4B(2)(b), provided “the nature of, and particular tasks involved in, the employment…[emphasis added]

13. In the Respondent’s SoIFC the “action” is described as a “decision” to end Mr Sillett’s “temporary arrangements” and to “return to front of house duties”.

14. In my view, a more accurate characterisation of the “action” is that in early December 2016, “Mr Sillett’s manager met with Mr Sillett and advised him that he would be required to return to his normal front of house role in the New Year”.[5]

    [5] Email: Ms Wade to People Support NSW 21 December 2016, Section 37 Documents at p82; Report of Ms Kerr 26 June 2018.

15. The characterisation of this action as an “administrative action” is, in my view, questionable.

16. In her statement of 5 August 2019, Ms Wade indicated that, in 2017, the staffing situation in the Bathurst Service Centre was “fluid” and subject to change from “month to month”. She indicated that the normal practice was that, if staffing in the front of house team exceeded the workload, “some staff were placed in the back of house team to perform processing work” and that Mr Sillett was moved to assist with “the sickness benefits claim in the back of the house.” She also stated that, if the front of house team needed an additional person, “Mr Sillett would have been moved back”.

17. It would appear from Ms Wade’s evidence that the allocation of duties within the Bathurst Service Centre depended on “operational” needs.

18. On consideration of the available evidence, I am satisfied that when Mr Sillett was told he would be returning to his prior duties it was for reasons related to the business of the Bathurst Service Centre and, therefore, “operational” rather than “administrative”.

19. Although not necessary, for completeness, it is appropriate to consider the Respondent’s contention that the action to return Mr Sillett to front of house duties was taken in respect of his “employment”.

20. I note that, at all relevant times Mr Sillett continued to be employed as an APS4 Customer Officer with the DHS at the Bathurst Service Centre. There were no changes in the conditions or status of his employment, no issues with respect to work performance, no disciplinary matters, and no evidence that he failed to obtain a promotion, reclassification or transfer or retain a benefit.

21. The contention in the Respondent’s SoIFC, that Mr Sillett’s expressed preference for work without face to face customer contact was a “failure to retain (obtain) a reclassification or transfer” I find unacceptable.

22. At this point it is appropriate to review the circumstances which resulted in Mr Sillett suffering his psychological condition.

23. In August 2017 Mr Sillett, due to business requirements,[6] was assigned to back office duties.

    [6] Report of Ms Kerr dated 26 June 2018.

24. As noted above, in-house transfers were operationally “fluid”. Mr Sillett was not formally transferred to a new “fixed position”,[7] but simply temporarily reassigned to different duties within the Bathurst Service Centre.

    [7] Statement of Ms Wade dated 5 August 2019 at para 9.

25. In December 2016, when informed by his manager that he was to be reassigned to his front of house duties, Mr Sillett developed symptoms consistent with a psychological condition, which was subsequently diagnosed as a Specific Phobia, Situational.

26. The reassignment was not directed at Mr Sillett alone, but due to “operational demand reasons”[8] and a change in the “organization’s strategic directions”[9] which applied to all staff across the Service Zone.

    [8] Report of Ms Barrett dated 20 August 2019 at para 10.

    [9] Ibid p 7.

27. I am satisfied that the action to inform Mr Sillett that he was to return to his former front of house duties was not an action directed specifically to Mr Sillett and, therefore, not taken in respect of his employment.

28. It follows that it is not necessary to consider the references to reasonableness and that I am satisfied that Comcare is liable to pay compensation pursuant to section 14 of the SRC Act.

29. At this point I note that the liability created by section 14 is qualified, in that it is limited by other provisions of the SRC Act[10] and, therefore, whether Mr Sillett is actually entitled to any compensation payments is a matter for further consideration by Comcare.

    [10] Lees and Comcare [1999] FCA 753 (7 June 1999) at 27.

    DECISION

30. The decision under review is set aside and the matter is remitted to the Respondent for further consideration with the direction that Comcare is liable to pay compensation in respect of Mr Sillett’s psychological condition, Specific Phobia, Situational that was contributed to, to a significant degree, by his employment.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

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

Associate

Dated: 23 October 2019

Date(s) of hearing:	2 September 2019
Applicant:	In person
Counsel for the Respondent:	M Gollan
Solicitors for the Respondent:	J Bae, Comcare