Stewart and Comcare (Compensation)

Case [2018] AATA 3685

Stewart and Comcare (Compensation) [2018] AATA 3685 (2 October 2018)

Division:GENERAL DIVISION

File Number(s):      2016/3880

Re:Paul Stewart

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:2 October 2018

Place:Canberra

The reviewable decision dated 15 June 2016 denying liability to compensate the Applicant in respect of adjustment reaction with anxious mood is set aside.

In substitution, the Respondent is liable to compensate the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury being adjustment disorder with anxious mood suffered by him on 15 January 2016.

........................................................................
Senior Member Linda Kirk

Catchwords

COMPENSATION – whether the Applicant suffers an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in s 4 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) – whether this was contributed to, to a significant degree, by his employment with the Commonwealth, such that he has a ‘disease’ under s 5B of the SRC Act – whether the Applicant’s ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a reasonable manner with respect to the Applicant’s employment – whether meeting on 15 January 2016 was ‘administrative action’ ‘in respect of the Applicant’s employment’ – adjustment disorder with anxious mood – reviewable decision set aside.

Legislation

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

Cases

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Comcare v Drinkwater [2018] FCAFC 62

Comcare v Martinez (No 2) [2013] FCA 439

Comcare v Martin [2016] HCA 43

Drenth v Comcare (2012) 128 ALD 1

Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056

Lim v Comcare [2017] FCAFC 64

Long v Comcare [2016] FCA 737

Rutledge and Comcare [2011] AATA 865

Stieglitz v Comcare [2010] AATA 263

Wiegand v Comcare Australia [2002] FCA 146

REASONS FOR DECISION

Senior Member Linda Kirk

2 October 2018

INTRODUCTION AND BACKGROUND

  1. Mr Paul Stewart, (‘the Applicant’), has been employed by the National Library of Australia (NLA) in his current position, Director of Human Resources (Executive Level 2), since July 2010. At all material times, the Applicant’s supervisor was Mr Gerry Linehan, NLA Assistant Director-General, Corporate Services.

  2. By application dated 19 January 2016[1] the Applicant lodged a claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of a psychological injury he claimed he suffered as a result of a meeting between him and Mr Linehan on 15 January 2016.

    [1] T Documents, T4

  3. In a determination dated 21 March 2016[2] the Respondent denied liability under s 14 of the SRC Act in respect of adjustment reaction with anxious mood on the basis that the Applicant had not suffered a psychological injury which was significantly contributed to by his employment, and that the circumstances of his claim fell within the ‘reasonable administrative action’ exclusion contained in s 5A(1) of the SRC Act.

    [2] T Documents, T24

  4. By letter dated 20 April 2016…

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AGLC
Stewart and Comcare (Compensation) [2018] AATA 3685
Case
[2018] AATA 3685
Decision Date

CaseChat Overview and Summary

This matter concerned an application for compensation under the *Safety Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) by an applicant against Comcare. The applicant sought compensation for an adjustment disorder with anxious mood, alleging it constituted a 'disease' as defined by the Act, and that this condition was contributed to, to a significant degree, by his employment. A key dispute revolved around whether the applicant's condition arose as a result of 'reasonable administrative action taken in a reasonable manner' in respect of his employment, which would disentitle him to compensation.

The court was required to determine whether the applicant suffered from an 'ailment' or an 'aggravation' of an 'ailment' as defined in section 4 of the SRC Act, and if so, whether this constituted a 'disease' under section 5B of the Act. Crucially, the court had to consider whether this 'disease' was suffered as a result of 'reasonable administrative action taken in a reasonable manner' with respect to the applicant's employment, and specifically whether a meeting on 15 January 2016 constituted such 'administrative action'.

The court's reasoning drew upon established principles regarding the distinction between 'administrative action' and 'operational decisions' within the context of the SRC Act. Citing *Long v Comcare* and *Comcare v Drinkwater*, the court noted that 'administrative action' must be employee-specific and go beyond the regulation of normal employment incidences. Actions forming part of ordinary work duties, routine, or changes to routine are generally not considered 'reasonable administrative action'. The court considered the applicant's email to his supervisor notifying him of an urgent absence due to his mother's care needs, and the subsequent phone call, in light of these principles. The decision ultimately set aside the reviewable decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A consideration of whether the Applicant is entitled to compensation under s 14 of the SRC Act therefore involves determining whether the ‘disease’ he suffered was as a result of ‘reasonable administrative action taken in a reasonable manner in respect of [his] employment’.EVIDENCE BEFORE THE TRIBUNALEvents during Christmas/New Year closure The NLA was closed for the Christmas/New Year period from 24 December 2015 to 4 January 2016. The Applicant travelled to Sydney on two occasions during this period to visit his elderly mother. She was in a very frail and distressed state and the Applicant brought her back to Canberra where she stayed with him at his home while he attempted to make arrangements for her to be medically assessed and treated. The Christmas/New Year break meant that these services could not be arranged until the week beginning 4 January 2016. The Applicant was at the time the sole carer of his mother who was very unwell and bed-bound. On the evening of Sunday 3 January 2016 at 7:17pm the Applicant sent his supervisor, Mr Linehan, an email headed ‘Urgent Absence’[8] to notify him of his necessary absence from work the following day:Dear Gerry,Happy new year to you. I hope you had a restful break.I am afraid I have some bad news Gerry. Over the Christmas break, I had to travel to Sydney to bring back to Canberra my very frail 85 year old mother who can no longer care for herself … Long story short, she is too frail and ill to stay at home by herself, and I will need to stay at home with her for the next week. After that, I would expect to be able to return to work part-time – perhaps work in the morning or afternoon and care for her the other half day. I would expect this would be for another fortnight or 3 weeks till she can return to Sydney, we can get a carer in or she will go into care here or in Sydney. I will, of course, cancel the leave we discussed for 7 and 10 January as I will need to be here.Gerry, I realise this is unwelcome news and I very much regret its impact especially with the EL1s being off. However, I have no alternative and cannot leave my mum at home by herself lest she has a fall while alone.Regards,Paul[8] T Documents, T13.3 page 41 The following morning, Monday 4 January 2016 at 8:40am, Mr Linehan sent the Applicant the following email[9]:Thanks PaulSorry to hear about your mum.Can you give me a call this morning so I can understand what you have on here at work and what arrangements you may have in train for it.Regards,Gerry Linehan[9] T Documents, T13.3 page 42 The Applicant phoned Mr Linehan at 10.04am[10] that morning and they briefly discussed his absence from work to allow him to care for his mother. During the short six minute call, which the Applicant described as an ‘uncomfortable conversation’, the Applicant became very distressed and began to cry. This made Mr Linehan uncomfortable and he told the Applicant to call him back later when he was better.[10] Supplementary T Documents, ST14.9 page 518 Telstra phone account

Decision

Reasons for decision

In Long v Comcare [2016] FCA 737 at [20] to [24], Tracey J noted:[20] A distinction between “administrative” action and “operational” decisions was recognised by the Full Court in Reeve.[21] Mr Reeve had developed a depressive illness while working as a manager of a Perth branch of the Commonwealth Bank. The circumstances which contributed to his condition included organisational and staff changes, the humiliation of a telephone conference with colleagues in which he was required to report poor branch results, an unsupportive visit from his manager and the anxiety of reporting poor customer satisfaction survey results. The Full Court held that the exclusion under s5A of the Act applied to specific action taken in respect of an individual’s employment, such as disciplinary action (“administrative action”), as opposed to action forming part of the everyday tasks and duties of that employment (“operational decisions”). Thus, the ordinary work routine, changes to routine and directions to perform work did not constitute “reasonable administrative action taken in respect of the employee’s employment”. The Full Court concluded that the events which contributed to Mr Reeve’s condition were part of his ordinary work duties as an employee and he was, therefore, not disentitled to compensation by operation of the qualification in s5A(1) of the Act.[22] The distinction between “administrative action” and “operational” decisions was explained by Gray J at [33] in the passage quoted by the Tribunal (see above at [15]).[23] At [60] (in another passage quoted by the Tribunal) Rares J and I drew a similar distinction.[24] Both judgments established that “administrative action”, within the meaning of s5A, must be employee-specific. It must entail more than the regulation of the normal incidences of a person’s employment. Such action may or may not involve the application or implementation of some particular policy. The “formality” or otherwise of a particular action on the part of the employer is not necessarily a determinative factor.(Emphasis added) The Full Federal Court recently considered the construction and application of the exclusion contained in the definition of “injury” in s 5A of the SRC Act in Comcare v Drinkwater [2018] FCAFC 62 (‘Drinkwater’). The Full Court noted (at [51]) that in Reeve, it was found that the:“… exclusion did not apply to action forming part of the everyday tasks and duties of that employment, and, in consequence, ordinary routine work, and changes to routine and directions to perform work, were not “reasonable administrative action taken in respect of the employee’s employment”: see CBA v Reeve at [33], [60]. The Full Court held that the events that contributed to Mr Reeve’s condition were part of his ordinary work duties as an employee; the exclusion did not therefore apply; and he was not disentitled to compensation under the SRC Act: see CBA v Reeve at [34], [61], [64].”

Ratio Decidendi

Legal Principle Established

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