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.
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Senior Member Linda KirkCatchwords
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
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
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.
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
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
By letter dated 20 April 2016…
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- Case
- [2018] AATA 3685
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CaseChat Overview and Summary
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.
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Background
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