Thompson and Comcare (Compensation) - [2017] AATA 259

Thompson and Comcare (Compensation) [2017] AATA 259 (28 February 2017)
Division:GENERAL DIVISION
File Number: 2016/0978
Re:Graham Thompson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member J F Toohey
Date:28 February 2017
Place:Sydney

The Tribunal affirms the decision under review.
........................[sgd]................................................
Senior Member J F Toohey
CATCHWORDS
COMPENSATION – psychological injury – accepted that employment contributed to significant degree – whether Comcare not liable by reason of reasonable administrative action taken in a reasonable manner in respect of employee’s employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A(1)-(2), 5B(1), 14
CASES
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
Senior Member J F Toohey
28 February 2017

Background Graham Thompson was employed by Australian Hearing from January 2011 until his resignation in November 2015. For most of that time he was employed as a Senior Client Service Officer.
On 16 May 2015, Mr Thompson lodged a claim for compensation for anxiety and depression as a result of “prolonged abuse” by a client on 21 November 2014, and his manager’s failure to support him following this incident. He claimed that actions of his manager on 26 November 2014 and 5 December 2014 added to his distress.
Comcare denies liability to compensate Mr Thompson.
Legislation
By s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), Comcare is liable to pay compensation in respect of an injury suffered by an employee if that injury results in death, incapacity for work, or impairment.
Injury in the Act includes a disease suffered by an employee: s 5A(1). Disease means an ailment, or aggravation of an ailment, that was contributed to, to a significant degree, by the employee’s employment: s 5B(1). It is not in dispute that the condition for which Mr Thompson claims compensation is an ailment within the meaning of the Act. It is not in dispute that the event, or events, of which he complains, contributed to a significant degree, to his psychological condition. Comcare contends, however, that it is not liable to compensate Mr Thomson by reason of the exclusion in s 5A(1) of the Act.
Section 5A(1) provides that the meaning of injury in the Act “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”.
Section 5A(2) provides that, without limiting s 5A(1), reasonable administrative action is taken to include:
(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,…

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 Thompson and Comcare (Compensation)

Details

AGLC: Thompson and Comcare (Compensation) [2017] AATA 259
Case: [2017] AATA 259
Decision Date: 28 February 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Thompson against a decision by Comcare. Mr Thompson sought compensation for a psychological injury, which was accepted as having been contributed to by his employment to a significant degree. The central dispute revolved around whether Comcare was relieved of liability by reason of the operation of section 14(1) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), which provides that an employer is not liable to compensate an employee for an injury suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

The court was required to determine whether the actions of Mr Shaw, an employee of Comcare, constituted reasonable administrative action taken in a reasonable manner in respect of Mr Thompson's employment. Specifically, the court had to assess whether Mr Shaw's conduct on 21 and 26 November 2014, which were agreed to have contributed significantly to Mr Thompson's psychological ailment, met the criteria for reasonable administrative action taken reasonably.

In reaching its decision, the court considered Mr Thompson's assertion that Mr Shaw had failed to follow workplace policy by not supporting him and treating him with respect. However, the court found that, despite any prior history between the parties, Mr Shaw had treated Mr Thompson reasonably, with respect and courtesy. Consequently, the court was satisfied that the events of 21 and 26 November 2014 constituted reasonable administrative action taken in a reasonable manner in respect of Mr Thompson's employment. The court therefore affirmed the decision under review, holding that Comcare was not liable to compensate Mr Thompson for the injury suffered as a result of those incidents.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Thompson asserts that Mr Shaw failed to follow workplace policy by failing to support him and treat him with respect. I do not agree. I am satisfied that, despite their history, Mr Shaw treated Mr Thompson reasonably, and with respect and courtesy. Conclusion I am satisfied that what occurred on 21 and 26 November 2014, being the incidents that it is agreed contributed to a significant degree to Mr Thompson’s ailment, was reasonable administrative action taken in a reasonable manner in respect of his employment. It follows that Comcare is not liable to compensate Mr Thompson for injury suffered as a result of those incidents. I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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