Sue Varga and Comcare

Case [2013] AATA 829

[2013] AATA 829

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/2267

Re

Sue Varga

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Mr Dean Letcher, QC, Senior Member
Dr Saw Toh, Member
Date 22 November 2013 
Place Sydney

The decision under review is affirmed.

.......[Sgd].................................................................

Mr Dean Letcher, QC, Presiding Member

CATCHWORDS

COMPENSATION – Commonwealth Employees – depression – whether or not the conduct which resulted in the disease suffered by the employee was reasonable administrative action taken in a reasonable manner – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 37

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

CASES

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Hart v Comcare [2005] 154 FCR 29
Re KRDV and National Australia Bank (2011) 125 ALD 311
Lynch and Comcare (2010) 114 ALD 394
Radulovic and Comcare [2010] AATA 777

REASONS FOR DECISION

Mr Dean Letcher, QC, Senior Member
Dr Saw Toh, Member

  1. The Applicant seeks review of a decision that she did not suffer “injury” within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). It is not disputed that she suffered a Major Depressive Disorder, Single Episode and that this condition was contributed to a significant degree by her employment with the Australian Taxation Office (“ATO”). It is agreed that this is “a condition that is outside the boundaries of normal mental functioning and behaviour” (Hart v Comcare [2005] 154 FCR 29).

  2. Section 14 of the Act provides that compensation is payable ‘in respect of an injury suffered by an employee if the injury results …in incapacity for work.” ’Injury’ is defined in s 5A(1) to mean “a physical or mental injury… arising out of, or in the course of, the employee’s employment” (s 5A (1)(b)), and it also includes a ‘disease’ which in turn is defined in s 5B to mean an ‘ailment’, and ‘ailment’ includes “any…mental ailment, disorder, defect or morbid condition…” (section 4(1)). However, excluded from the definition of ‘injury’ is “a disease… suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” (s 5A(1)). Under s 5A(2) ‘reasonable administrative action’ is given a wide inclusive definition encompassing “reasonable disciplinary action (whether formal or informal)” and “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” (s 5A(2)(f)).

  3. The Applicant claims compensation under s 14 of the Act alleging psychiatric injury incapacitated her from 11 August 2010 to November 2010. She claims that her injury was caused by the manner in which her appointment to higher duties was terminated on 21 January 2010, and the manner of deferral of a salary advancement on March 2010. However, Comcare determined that the cause of whatever she suffered was “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” and hence under s 5A of…

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AGLC
Sue Varga and Comcare [2013] AATA 829
Case
[2013] AATA 829
Decision Date

CaseChat Overview and Summary

The case of Sue Varga and Comcare involves an employee who claims compensation for a psychiatric injury she alleges arose from administrative actions taken by her employers. The matter was heard by the Administrative Appeals Tribunal, which was required to determine whether the employee's injury was caused by actions taken in the course of her employment and if it met the criteria for compensation under the relevant legislation. The central issue was whether the termination of the employee's higher duties and the deferral of a salary increment constituted reasonable administrative actions that led to her psychiatric injury. The Tribunal had to consider whether these actions were reasonable and whether they were carried out in a reasonable manner.

The Tribunal found that the employee had indeed suffered a psychiatric injury that was partly caused by the administrative actions of her employers. It concluded that the actions taken, including the termination of her higher duties and the deferral of her salary increment, were reasonable and were carried out in a reasonable manner. However, these actions contributed to her injury. The Tribunal was satisfied that the employee's injury arose in part from her employment and that the administrative actions were among the significant causal factors. The decision of Comcare to deny compensation was therefore affirmed by the Tribunal.

In reaching its decision, the Tribunal considered the evidence provided by the employee, her managers, and other relevant parties. It examined the circumstances surrounding the administrative actions and the employee's response to them. The Tribunal also considered the policies and procedures of the employer regarding higher duties and salary increments. Based on this evidence, the Tribunal concluded that the employee's injury was indeed connected to her employment and that the administrative actions were reasonable but still contributed to her injury.

The final orders of the Tribunal affirmed the decision of Comcare, meaning that the employee's claim for compensation was dismissed. The Tribunal found that the employee's injury did not qualify for compensation under the relevant legislation because it arose from reasonable administrative actions taken in a reasonable manner.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant claims compensation under s 14 of the Act alleging psychiatric injury incapacitated her from 11 August 2010 to November 2010. She claims that her injury was caused by the manner in which her appointment to higher duties was terminated on 21 January 2010, and the manner of deferral of a salary advancement on March 2010. However, Comcare determined that the cause of whatever she suffered was “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” and hence under s 5A of the Act there was no “injury”.THE APPLICANT’S EVIDENCE BEFORE THE TRIBUNAL Ms Varga commenced employment with the ATO in 2006. She was working in the Superannuation Guarantee Section in February 2009 when Mr Jaswinder Singh-Sidhu was appointed her team leader. She gave extensive evidence about her feelings concerning her work and her colleagues:At the beginning he seemed ok but it changed. I felt he was watching my every move, I felt isolated, there was a culture…I was not blending in with the younger cohort, they were a clique…. There were no particular incidents in that period of about four weeks. Between March and June 2009 the Applicant was on study leave completing a Bachelor of Business Accounting university degree. She obtained a credit average and on her return to work “won a higher duties appointment” in the Client Services & Advice section (“CS & A”) whose team leader was Deborah Behnke. This section gave telephone advice to callers on tax policy. The Applicant in her evidence gave her point of view on the work and how she coped with its demands. The Applicant underwent training for about two weeks and then her work was mentored for further weeks. The technical advisers were “meant to be available to assist” her. In September 2009 she applied to the ‘mobility register’ to enable a lateral transfer because she was “unhappy.” The Applicant says that she received positive assessments from Ms Behnke and her higher duties period was extended for a further three months. She took this to be a sign of success. Then, in late November, the Applicant contacted Ms Behnke about a “rude call” from another tax officer who “incorrectly transferred an outside call to me and debated with me and demanded my User-ID.” Ms Behnke listened to the call and “gave no advice…but admitted that she was not technically trained and said: ‘You took too long (on the call)’”. The Applicant said that, shortly after this, Ms Behnke said: “You need someone to sit with you and get more assistance”. The Applicant said that Ms Behnke then listened to several of the Applicant’s calls and said she was “quite happy.” The Applicant referred to Ms Behnke’s e-mail to Ms Wearne which said in part: “I was more than pleased with the way she structured the calls. If she continues to answer calls in this way then we may have solved the issues” [T35, p 145]. The Applicant said that almost two months later, on 21 January 2010, without any other incidents or warning, the Applicant was called to a meeting with her team leader, Ms Behnke, and the section head Trina Wearne and was told:We’ve decided to terminate your higher duties. We think you are a risk to the business.

Decision

Reasons for decision

We are satisfied that the Applicant suffered a psychiatric injury arising in part from her employment, and that among the significant causal factors were the reasonable administrative actions carried out in a reasonable manner the subject matter of this hearing.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

On 21 January 2010 Ms Behnke and Ms Wearne met the Applicant and explained the decision and the reasons. The Applicant said she was shocked, claimed that she performed as well as her peers but said:You have done me a favour. I don’t like working to a schedule anyway.STATEMENT OF MS WEARNE [OPERATIONS LEADER CS & A) Ms Trina Wearne’s statement noted that she had worked in the same area and frequently saw the Applicant’s behaviour, including her complaints about QAs. She had decided to extend the term of higher duties hoping that time would help adjustment, but after some improvement there was decline in December. The leader of the QA emailed her concerns [T35, p146]. Ms Wearne believed that the issues identified had already been repeatedly raised with the Applicant to no avail. She decided on the basis of the repeated discussions, emails, QAs and the Applicant’s behaviour, to terminate. Ms Wearne noted that the ATO Higher Duties Policy [ST2, p406] provided that there could be cancellation at any time by management subject to prior counselling, which the Applicant had received. On 21 January 2010 at the meeting Ms Wearne “definitely gave Ms Varga an explanation as to why her higher duties were being cancelled – that was the whole purpose of the meeting; there would have been no benefit in having a meeting otherwise. I said she was using technical support staff excessively when she should have been able to answer calls more independently, providing inaccurate responses to queries from clients, being argumentative with other staff and having disrespectful outbursts… .” Ms Wearne’s view was that there is no obligation to give an employee prior notice that their higher duties are being terminated. The Corporate Management Procedures and Instruction [CMPI 2009/01/04 at ST1, p395] says that higher duties can be cancelled at any time, and it also says that “[d]iscussions should be held with the employee prior to the decision to ensure that natural justice principles are met. In all instances, the manager must inform the affected employee of, and discuss the reasons for, the decision to cease higher duties before the decision takes effect.”EVIDENCE OF MR SINGH-SIDHU (SUPERANNUATION SECTION TEAM LEADER) Mr Singh-Sidhu gave evidence and impressed the Tribunal as a careful, balanced and competent manager. He rejected the Applicant’s suggestions that he had bullied or harassed her. He denied that in his presence she had ‘sobbed uncontrollably’ and run to the restroom. He did not recall pointing at her degree certificate. He agreed that some 20 -30% of his super team were younger than the Applicant and about five out of 12 were over 45 years old. He denied being angrily confrontational and said that he found the Applicant to have difficulty not in learning but in receiving and acting on feedback. He gave his reasons for deferring her increment in March 2010, saying that he could not say confidently that she was competent, given that she had been transferred to his section only two months before. He said to her that she could seek review of his decision from the site director. No such review was requested.