THTC and Comcare (Compensation)
[2016] AATA 884
•8 November 2016
THTC and Comcare (Compensation) [2016] AATA 884 (8 November 2016)
Division
GENERAL DIVISION
File Number
2015/3863
Re
THTC
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Brigadier AG Warner, MemberDate 8 November 2016 Place Perth The Tribunal affirms the decision under review.
.......[Sgd].................................................................
Senior Member CR Walsh
CATCHWORDS
COMPENSATION – recurrent major depressive disorder – whether applicant made a wilful and false representation that he did not suffer, or had not previously suffered, from the claimed condition – whether the applicant’s claimed condition was contributed to, to a significant degree, by his employment – date of injury of applicant’s claimed condition – whether applicant’s claimed condition was as a result of reasonable administrative action taken in a reasonable manner in respect of his employment – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 – s 4 - s 5A – s 5A(1) – s 5A(2) – s 5B – s 5B(1)(b) - s 7(7) - s 14
CASES
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Mooi [1996] FCA 508
Comcare v Porter (1996) 45 ALD 51
Commonwealth Bank of Australia v Reeve & Anor [2012] FCAFC 21; (2012) 199 FCR 463
Hart v Comcare [2005] FCAFC 16
Ianella v French (1968) 119 CLR 84
Jing Yu v Comcare [2010] AATA 960
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Martin v Comcare [2015] FCAFC 169
National Australia Bank v Georgoulas [2013] FCA 1412
Re Georges and Telstra Corporation [2009] AATA 731
Re Georgoulas and National Australia Bank Ltd [2013] AATA 512
Re Makin and Comcare [2010] AATA 432
Re Thompson and Comcare [2012] AATA 752
Smith and Comcare [2007] AATA 1796
Von Stieglitz and Comcare [2010] AATA 263
REASONS FOR DECISION
Senior Member CR Walsh
Brigadier AG Warner, Member8 November 2016
INTRODUCTION
THTC has spent the majority of his working life as a Commonwealth public servant, including a 12 year period working overseas in Papua New Guinea, Vietnam, Laos and China. THTC left school at the age of 15 and joined the Department of Civil Aviation. THTC later worked for the Department of Foreign Affairs and Trade and the National Native Title Tribunal. On 28 July 2003, THTC commenced employment with the Department of Immigration and Border Protection (the Department).
In late 2012, THTC joined the Returns and Removals Policy section (Refugees) of the Department, in Canberra.
On 24 March 2014, following a 35 to 40 minute meeting with the then Assistant Secretary Mr David Walsh, in which THTC alleges that Mr Walsh verbally assaulted him, THTC left work and did not return. This meeting is discussed in further detail in paragraphs 74 to 83 below.
By email dated 8 August 2014, THTC lodged a “Claim for Compensation”, dated 31 July 2014, with Comcare for the following “injury or illness”:
breakdown - mental illness - deep depression
possible post traumatic stress disorder (the Compensation Claim).
According to THTC:
I consider the single incident that caused injury was the meeting of 27 March 2014 convened by the CSRB [i.e. the Compliance Status Resolution Branch] Assistant Secretary David Walsh.[1]
[1] Exhibit 2 at p2.
In the Compensation Claim, in response to the question:
·“24. What were you doing at the time you were injured or contracted your illness?”, THTC states:
called to a meeting by the Assistant Secretary
·“25. What action, exposure or event happened to cause your injury or illness?”, THTC states:
A targeted and prolonged, sustained verbal assault by the Assistant Secretary [i.e. Mr Davis Walsh] for duration of meeting relating to my professional conduct and integrity; and
·“26. What actually injured you, or made you ill?”, THTC stated:
Targeted and unwarranted abuse by The Assistant Secretary [i.e. Mr David Walsh] causing mental meltdown.
On 17 December 2014, Comcare denied THTC liability for the claimed condition under s 14 of the SRC Act (the Determination).
On 18 February 2015, THTC requested a reconsideration of the Determination by Comcare.
On 3 June 2015, Comcare affirmed the Determination (the Reviewable Decision).
On 30 July 2015, THTC applied to the Tribunal for a review of the Reviewable Decision. THTC’s stated “Reasons for the Application” are as follows:
I disagree with a number of conclusions of the delegate – namely that the cause of the injury was consistent with ‘reasonable administrative action’: The delegate suggested that her notification to DIBP ‘should encourage rectification’ my concerns DIBP has not acted in good faith in my rehabilitation, and that because this has happened after the date of the injury (28 March 2014) it has no bearing on my well-being is erroneous and contradicts professional medical reports nor the facts. I am inclined now to lodge another Workers Comp Claim for injuries sustained and aggravated by the actions of the DIBP since the initial injury ie 28 March 2014.
ISSUES
The ultimate issue to be decided by the Tribunal is whether Comcare is liable to pay THTC compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1998 (SRC Act) for the claimed condition.
This requires the Tribunal to determine the following:
(i)What is the appropriate diagnosis of THTC’s condition;
(ii)Is THTC’s claimed condition excluded from being an “injury”, as defined in s 5A(1) of the SRC Act, as he made a “wilful and false representation” that he did not suffer, or had not previously suffered, from the claimed condition for the purposes of s 7(7) of the SRC Act;
(iii)Was THTC’s claimed condition, contributed to, to a significant degree, by his employment with the Department;
(iv)What is the date of injury for THTC’s claimed condition; and
(v)Whether THTC’s condition is a result of “reasonable administrative action taken in a reasonable manner” in respect of his employment with the Department and is thus excluded from being an “injury” for the purposes of s 5A(1) of the SRC Act?
CONSIDERATION
Relevant legislation
Section 14 of the SRC Act sets out the circumstances in which Comcare is liable to pay compensation, as follows:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
The term “injury” is defined in s 5A of the SRC Act as follows:
5A Definition of injury
(1) In this Act:
injury means:
(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.
(2)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. [Emphasis added]
The term “disease” is defined in s 5B of the SRC Act (for the purposes of the definition of the term “injury” in s 5A of the SRC Act) as follows:
5B Definition of disease
(1)In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In 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.
(3)In this Act:
significant degree means a degree that is substantially more than material.
The term “ailment” is defined in s 4 of the SRC Act (for the purposes of the definition of the term “disease” in s 5B of the SRC Act) as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 7 of the SRC Act contains “Provisions relating to diseases”. Of relevance here, is s 7(7) of the SRC Act which provides:
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease. [Emphasis added]
(i)What is the appropriate diagnosis of THTC’s condition?
Dr Amit Banerjee, Consultant Psychiatrist, in his report dated 10 November 2014, stated that THTC was suffering from:
major depressive disorder.[2]
[2] Exhibit 1 at pp101-102.
Dr Yue Chong (Olivia) Lee, Consultant Psychiatrist, in her report dated 2 April 2015, diagnosed THTC with:
Recurrent depression in partial remission.[3]
[3] Exhibit 1 at p330.
In his report dated 16 June 2016, Dr Jonathon Spear, Consultant Psychiatrist, diagnosed THTC with:
Major Depressive Disorder, recurrent Delusional Disorder, in remission.[4]
[4] Exhibit 12 at p6.
Accordingly, the consensus amongst the medical experts (psychiatrists) is that THTC suffers a condition that was “outside the boundaries of normal mental functioning and behaviours”: Comcare v Mooi [1996] FCA 508.
Based on the available medical evidence, the Tribunal finds that the appropriate diagnosis of THTC’s condition is “recurrent major depressive disorder”.
The diagnosis of THTC’s condition as “recurrent” is justified having regard to his extensive pre-existing psychological symptoms.[5] (diagnoses and treatment: refer to paragraph 32 below).
[5] Exhibit 6 (i.e. the “Respondent’s Tender Bundle).
As THTC’s condition is a recurrent psychological condition, it is a “disease”, being an “aggravation of…an ailment” for the purposes of s 5B(1)(b) of the SRC Act: see paragraph 15 above.
(ii)Is THTC’s claimed condition excluded from being a “injury”, as defined in s 5A(1) of the SRC Act, as he made a wilful and false representation that he did not suffer, or had not previously suffered, from the claimed condition (disease) for the purposes of s 7(7) of the SRC Act?
THTC’s representations to Comcare
Question 16 in the Compensation Claim asks “Have you ever had a similar symptom, injury or illness, work-related or otherwise?” In response to that question, THTC ticked “No”.
Question 17 in the Compensation Claim asks “Have you ever received medical treatment for a similar injury or illness?” In response to that question, THTC ticked “Yes” and noted:
Date / / 1996
Name of doctor Swan Health Clinic
THTC’s representations to Comcare are in relation to the claimed condition (disease)
In ReMakin and Comcare [2010] AATA 432, the Tribunal stated that the s 7(7) of the SRC Act is not enlivened by a representation about any disease but, rather, about “that disease” which is the subject of the relevant compensation claim.
The phrase “that disease”, as it appears in s 7(7) of the SRC Act, was considered by the Tribunal in Re Georgoulas and National Australia Bank Ltd [2013] AATA 512. On appeal, in National Australia Bank v Georgoulas [2013] FCA 1412, Perry J said:
73.In my view, on a plain reading of the provision, the use of the phrase ‘that disease’ in s 7(7) of the Act refers back to the disease, or to the aggravation of the disease, mentioned at the start of the provision, being the disease or aggravation of the disease which is the subject of the claim for compensation and complies with the test in Mooi op cit. As Hayne, Heydon, Crennan and Kiefel JJ held in Alcan Alumina Pty Ltd v Cmr of Territory Revenue (NT) (2009) 239 CLR 27 at 47:
‘The language which has actually been employed in the text of legislation is the surest guide to legislative intention’.
74.… The text of the section lends no support, in my view, to the proposition that it is sufficient to establish that the representation was false because the employee had suffered from similar symptoms in the context of a different disease. The question then as to whether Ms Georgoulas had previously suffered from the same disease or a disease that was substantially similar was, as the Tribunal stated at [47] of its reasons, a question of fact. [Emphasis added]
Based on the available medical evidence, it is clear that THTC has been diagnosed with psychological conditions, and in particular, depressive disorders, in the past, prior to completing the Compensation Claim. THTC does not acknowledge this past diagnosis in his answer to Question 16 in the Compensation Claim and THTC’s answer to Question 17 in the Compensation Claim is inaccurate. The medical evidence reveals that THTC has suffered from recurrent mental health issues since at least 1993, not “1996” as stated in THTC’s answer to Question 17 on the Compensation Claim. THTC’s representations (being THTC’s answers to Questions 16 and 17 in the Compensation Claim) represent representations relating to the claimed condition (disease): Re Makin; National Australia Bank v Georgoulas.
THTC’s representations to Comcare were made in connection with his employment with the Department
The representations which are relevant for the purposes of the exclusionary provision in s 7(7) of the SRC Act are THTC’s answers to Questions 16 and 17 in the Compensation Claim: refer to paragraphs 25 and 26 above. Those representations were clearly made by THTC for purposes connected with his employment with the Department: National Australia Bank Ltd v Georgoulas.
THTC’s representations to Comcare were false
For a misrepresentation to be caught by s 7(7) of the SRC Act, the representation must be objectively false and made without any belief that it is true: Comcare v Porter (1996) 45 ALD 51.
The clinical records produced under summons by Comcare[6] demonstrate THTC’s substantial pre-existing psychiatric history (commencing in 1993). More specifically, the medical evidence before the Tribunal reveal the following:
· In 1993, THTC was diagnosed with a mental health (major depressive) episode: Dr Spear’s report dated 9 October 2014;
· In 1996, THTC was diagnosed with a delusional disorder and a psychotic disorder;
· In 1997, THTC was diagnosed with a relapse of his delusional disorder;
· In 2000, THTC was diagnosed with a relapse of paranoid delusional disorder;
· In 2003, THTC experienced a further episode of depression/psychosis;
· In 2005, THTC was diagnosed with major depressive disorder;
· In 2007, THTC experienced a further relapse of the delusional disorder; and
· In 2011, THTC was diagnosed with acute depression and also an adjustment disorder with depressed mood.
[6] Exhibit 6.
THTC acknowledged during cross-examination that the representations made in response to Questions 16 and 17 in the Compensation Claim form were not accurate but that he “couldn’t explain why” they were not. THTC told the Tribunal that he had nothing to hide as regards his mental health and that it was not his intention to mislead Comcare. Based on the evidence before it, the Tribunal finds that THTC’s representations to Comcare in the Compensation Claim were objectively false: Comcare v Porter.
THTC’s false representations to Comcare were wilful
The meaning of “wilful” was discussed by Jenkinson J in Comcare v Porter (1996) 45 ALD 51. Jenkinson J accepted as apposite Barwick CJ’s discussion of the meaning of the word “wilful” in lannella v French (1968) 119 CLR 84. Relevantly, his Honour stated:
27.It is not merely that the mind goes with the act but that the mind intends by the act to achieve something’.
While the term ‘false representation’ connotes objective falsity and knowledge, the conjunctive addition of the word ‘wilful’ imports an element of purpose, whereby to be wilful, the representation made must be made without any belief that it is true.. [Emphasis added]
As was evident from cross-examination, THTC is well aware of his extensive mental health history and extensive periodic use of anti-depressant medication.
In oral evidence, THTC denied that he had an intention to mislead Comcare. As stated above, THTC acknowledged that his answer to Questions 16 and 17 in the Compensation Claim were inaccurate but that he had no intention to mislead Comcare and he simply “couldn’t explain why” his answers to Questions 16 and 17 were inaccurate. The Tribunal finds that the objective evidence before it establishes that THTC’s representations to Comcare in the Compensation Claim were wilfully false: Comcare v Porter. In reaching this finding, the Tribunal refers to the factual circumstances that led to THTC lodging the Compensation Claim. More specifically, by the time THTC completed the Compensation Claim (on 31 July 2014) he was in severe financial hardship. By mid-2014 THTC had expended all of his sick leave, all of his annual leave entitlements and he no longer had any source of income. Further, by the time THTC completed the Compensation Claim (on 31 July 2014) he wanted to return to Perth from Canberra. Indeed, the evidence before the Tribunal shows that THTC had wanted to return to Perth from Canberra since mid-2012 and that in November 2013 he moved all of his belongings back to Perth from Canberra. Prior to lodging the Compensation Claim with Comcare on 8 August 2014, THTC had attempted to be transferred to Perth from Canberra by the Department. When that did not succeed, THTC sought redundancy from the Department in order to facilitate the move to Perth. When that was not forthcoming, he lodged the Compensation Claim.
The Tribunal is satisfied on the evidence before it that THTC’s “disease” (i.e. recurrent major depressive disorder) is excluded from being considered an “injury” for the purposes of the SRC Act due to the operation of s 7(7) of the SRC Act: see paragraph 17 above.
(iii)Was THTC’s claimed condition (disease), contributed to, to a significant degree, by his employment with the Department?
Having reached the above conclusion (in paragraph 37), it is unnecessary for the Tribunal to consider whether THTC’s disease (i.e. recurrent major depressive disorder) was contributed to, to a significant degree, by his employment with the Department. However, for completeness, the Tribunal makes the following observations in relation to this issue.
The Tribunal finds that THTC’s employment with the Department did not contribute to the development or aggravation of the claimed condition (disease) to a significant degree.
In reaching this finding, the Tribunal relies, in particular, on the most recent report of Dr Jonathan Spear, Consultant Psychiatrist, dated 16 June 2016, and Dr Spear’s oral evidence at the hearing of this application. Although Dr Spear had previously provided reports in relation to THTC’s condition, it was not until his report of 16 June 2016, for the purpose of which Dr Spear was provided with a copy of the available treatment notes (produced under summons)[7], that Dr Spear concluded that THTC’s employment with the Department did not contribute to his claimed condition (disease) to a significant degree.
[7] Exhibit 6.
In his 16 June 2016 report, Dr Spear states:
On balance I do not consider work related factors contributed to “a significant degree”. In my opinion, the significant causes of his mental health condition were:
(a) a vulnerability to develop mental illness
(a) a history of childhood adversity
(b) a family history of mental health issues
(c) a narcissistic personality style
(d) a history of serious recurrent mental illness
(e)cognitive distortions including low self-esteem, personalisation, catastrophic thinking, a sense of rejection, ideas of helplessness and projection where he makes assumptions and misinterpretations.
(b) Medical comorbidities
(a) Removal of basal cell carcinoma
(b) Ross River Virus
(c) Migraines
(d) Hepatitis B (non-carrier)
(c) Personal stress
(a)Financial distress with eviction, vandalism of his property, a mortgage foreclosure, loss of income
(b)Concern about his elderly mother who was isolated and had medical problems
(c) Social isolation
(d) Relationship issues with brother, ex-wife and his children
(d) Lifestyle changes in 2013
(a) Stopped exercise
(b) Stopped recreational interests
(c) Increased alcohol use
(e) Pharmacological
(a)He had discontinued antidepressant medication which significantly reduces the risk of relapse of recurrent depressive disorder. The risk of relapse for patients with two or more episodes is about 80% when a patient does not take antidepressant medications to prevent relapse. (Burcusa and lacono 2007, Clin Psychol Review Dec; 27(8): 959-985). Cognitive distortions, social isolation, childhood adversity, adverse life events and medical comorbidities increase the risk of relapse of recurrent depressive disorder, so his risk of relapse would have been much higher than 80% when he discontinued antidepressant medication. [Emphasis added]
Dr Spear’s opinion is consistent with the other available evidence which, in summary, is as follows:
· The pressure that THTC’s siblings were exerting on him, as the eldest child, to be more available to assist with his mother’s care in Perth;
· The issues with the people who tenanted THTC’s house in Perth and the protracted dispute with the real estate agent which followed;
· THTC’s financial circumstances were severely strained to the point where he considered filing for bankruptcy;
· THTC could not meet his financial obligations in Canberra and as a result had to move out of the property he had been renting there;
· THTC lived on the dining room floor of a friend’s home in Canberra from November 2013 until he relocated to Perth in April 2014;
· THTC’s desire to relocate to Perth, which commenced in mid-2012 and increased in intensity throughout 2013; and
· THTC’s oral evidence that he takes anti-depressant medication that is prescribed to him for a period after experiencing a mental health episode but then ceases taking it when he is feeling better, even against his doctor’s advice, because “it’s his body”.
Dr Amit Banjeree, Consultant Psychiatrist, opined, in his report dated 10 November 2014, that:
On the whole I believe that work - related incidents were responsible for approximately 80-85% of the aggravation of [THTC’s] condition. Non-work related incidents were responsible for approximately 15-20%.[8]
[8] Exhibit 1 at p102.
Dr Banerjee listed the “Employment related incidents” as comprising:
·Perceived workplace harassment.
·Disagreement with line manager about how to manage the government contract with International Organization for Migration.
·Directed that he would be performance managed.[9]
[9] Exhibit 1 at p102.
Dr Banerjee listed the “Non-employment related incidents” as being:
·Stressors related to tenants in his property.
·Mother’s ill health.[10]
[10] Exhibit 1 at p102.
In his report, Dr Banerjee failed to have regard to a number of “non-employment related factors” including, importantly, the impact of THTC’s decision to repeatedly decide to cease taking his anti-depressant medication after a period, when he is feeling better, as “it’s his body”. According to Dr Spear, that is the most significant factor at play in THTC’s condition: see paragraph 41 above and Dr Spear’s oral evidence at hearing. If due regard was had by Dr Banerjee of those other “non-employment related factors”, his opinion on contribution (causation), as set out in paragraph 43 above, may be altered.
Importantly, the threshold test that the Tribunal is required to apply is the “significant contribution test”. Dr Banerjee does not address that issue at all in his report.
The Tribunal considers that as Dr Banerjee was not made available for cross-examination, less weight should be afforded to his evidence, compared to Dr Spear’s tested evidence.
During cross-examination of Dr Spear, it became apparent that the last paragraph on page 5 of Dr Spear’s report, dated 16 June 2016, did not relate to THTC but, instead, to another patient of Dr Spear. Because of this, THTC asked for the entirety of Dr Spear’s report, dated 16 June 2016, to be withdrawn from evidence on the basis that it was “severely compromised”. Noting THTC’s concerns, the Tribunal decided that it would not have regard to the last paragraph on page 5 of Dr Spear’s report dated 16 June 2016 but that the remainder of this report would remain in evidence. Dr Spear explained to the Tribunal that although the last paragraph on page 5 of his report, dated 16 June 2016, had been inadvertently included in the report it did not alter his conclusion that THTC’s employment with the Department did not contribute to his claimed condition (disease) to a significant degree.
Even if the Tribunal were to find that there were other employment-related causes of THTC’s depression condition, pursuant to Hart v Comcare [2005] FCAFC 16, liability will be excluded if one of the contributing factors to THTC’s condition is properly characterised as “reasonable administrative action taken in a reasonable manner” in respect of THTC’s employment with the Department: refer to paragraphs 54 to 56 below.
For completeness, the Tribunal notes that there is no evidence before it which suggests that THTC suffers from a “delusional disorder” that is contributed to, to any degree, by his employment with the Department. That is, if THTC did suffer from a “delusional disorder” at some point it was “in remission” at the relevant time. In any event, the Tribunal understands that THTC does not seek an acceptance of liability for a “delusional disorder” in this application.
(iv)What is the date of injury for THTC’s claimed condition?
Having reached the conclusion that THTC’s employment with the Department did not contribute to the development or aggravation of the claimed condition (disease) to a significant degree, it is unnecessary for the Tribunal to determine what the date of injury for THTC’s claimed condition is. However, for completeness the Tribunal considers, based on the evidence, that the date of injury for THTC’s claimed condition, is on or about 27 March 2014. This is because THTC went off work on the afternoon of 27 March 2014 and did not return. Further, prior to 27 March 2014, THTC was not incapacitated for work, as required by s 14 of the SRC Act.
(v)Was THTC’s condition as a result of reasonable administrative action taken in a reasonable manner for the purposes of s 5A(1) of the SRC Act and is thus excluded from being an “injury” for the purposes of s 5A(1) of the SRC Act?
Having reached the above conclusion (in paragraph 37), it is unnecessary for the Tribunal to consider if THTC’s disease (i.e. recurrent major depressive disorder) was the result of reasonable administrative action taken in a reasonable manner in respect of his employment with the Department and is, therefore, excluded from being an “injury” for the purposes of s 5A(1) of the SRC Act. However, for completeness, the Tribunal notes the following.
The exclusionary provision
The exclusion in s 5A of the SRC Act excludes liability in relation to any injury that is the result of reasonable administrative action undertaken in a reasonable manner in respect of an employee’s employment.
The reasonable administrative action need not be the sole cause of the injury. If an excluded employment factor is causally implicated in the aggravation of the claimant’s condition, it does not matter that there are also other non-excluded causal factors: Hart v Comcare (2005) 145 FCR 29; [2005] FCAFC 16.
In Martin v Comcare [2015] FCAFC (Martin) 169 Murphy J (with whom Siopis J agreed) identified (at [66]) the following 5 limbs to the enquiry of whether the exclusion in section 5A applies:
· whether the relevant action is “administrative action”,
· whether the disease, injury or aggravation is suffered “as a result of” the administrative action; and
· whether the administrative action is “reasonable”, and
· whether the reasonable administrative action is “taken in a reasonable manner in respect of the employee’s employment”: see Commonwealth Bank of Australia v Reeve & Anor [2012] FCAFC 21; (2012) 199 FCR 463 at [33] (Gray J) and at [60] (Rares and Tracey JJ);
Administrative action
In Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21; (2012) 199 FCR 463 (Reeve) the Full Federal Court drew a distinction between actions that were “administrative” in nature and those which were more appropriately seen as “operational”, going to the business/enterprise being conducted by the employer. In their joint judgment, Rares and Tracey JJ said:
74. ... It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action” in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.
Claimed condition was “as a result of” the administrative action
The judgment of Murphy J in Martin provides guidance on the operation of the “as a result of” (causation) test in s 5A of the SRC Act: Martin at [105] to [112], [114] and [120] to [125]. His Honour held that the enquiry required by s 5A of the SRC Act “is one of causation and does not include a requirement that the condition be a direct or intended result of the action” (at [105]). Further, his Honour stated “it is important to keep in mind that in cases such as this causation is a matter of common sense” (at [108]).
Administrative action was “reasonable”
To fall within the exclusionary provision in s 5A(1) of the SRC Act this administrative action must be “reasonable” administrative action.
Determining whether administrative actions are “reasonable” involves an objective judgment, taking into account the circumstances in which the administrative actions occurred, and whether they were rational, lawful and not irrelevant or disproportionate to what was required. In Comcare v Martinez (No 2) [2013] FCA 439 (Martinez (No 2)), the Federal Court observed that:
63.In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.
82. ...I would of course agree ... that the word “reasonable" allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.
…
83.Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer
In Von Stieglitz and Comcare [2010] AATA 263, the Tribunal said (at [67]):
67.Whatever administrative action is to be taken must be ‘reasonable’. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’, Dr Campbell summed up many facets of these principles in Re Georges and Telstra Corporation Ltd when he said:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound [sic] of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.
In Re Thompson and Comcare [2012] AATA 752 the Tribunal said:
61.What is ‘reasonable’ is a question of fact: Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105’ 204 ALR 761; 77 ALD 331; [2004] FCAFC 16 per French J at [76]. Reasonableness is a chameleon-like concept, tailored to the specific circumstances, including in this matter; the criteria relating to (the person’s) employment...: Re Lynch and Comcare (2010) 114 ALD 394; [2010] AATA 38 at [106]. As a minimum, to be reasonable the action must be lawful: Comcare v Chenhall (1992) 37 FCR 75; 109 ALR 361; Re Lynch and Comcare (2010) 114 ALD 384; [2010] AATA 38 at [105]. The test is objective: Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105’ 204 ALR 761; [2004] FCAFC 16 per French J at [66] and requires an examination of whether the administrative action is ‘sensible, moderate, ... tolerable [and] fair’: Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [22] The administrative action may be ‘not greatly less nor more than might be expected’ in the circumstances: Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [22] This requires an exercise of judgment about which, in borderline or difficult cases, minds may differ: Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105; 204 ALR 761; 77 ALD 331; [2004] FCAFC 16 per French J at [76]
Reasonable administrative action “taken in a reasonable manner in respect of the employee’s employment”
In Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 (Keen), Lander J said (at 47-48):
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration action was taken in a reasonable manner by the employer.
Determination of whether action was reasonably taken requires consideration to be given to the particular circumstances of the employee that were known to the employer, or could have become known by simple enquiry: ReGeorges and Telstra Corporation [2009] AATA 731; Jing Yu v Comcare [2010] AATA 960. However, the impact of the action upon the employee is not determinative: Martinez (No 2) at [73].
To fall within the s 5A(1) exclusionary provision, the relevant administrative actions must be matters “with respect to the employment relationship that the particular employee has with the employer”: Reeve per Gray J at [33]. That is, the actions must not be part of the employee’s everyday duties or tasks: Reeve per Rares and Tracey JJ at [60].
Relevant administrative actions by the Department
Comcare contends that the following constitute “administrative actions” for the purposes of s 5A(1) of the SRC Act:
(i)the appraisal of THTC’s performance by Ms Janet Hartmann on 25 July 2013; and
(ii)THTC being counselled by Mr David Walsh during the meeting on 27 March 2014.
Each of the above actions is considered, in turn, below.
(i)The appraisal of THTC’s performance by Ms Janet Hartmann on 25 July 2013
The appraisal on 25 July 2013
At the time of the meeting between THTC and Ms Janet Hartmann on 25 July 2013, Ms Hartmann was the Assistant Director of the Contract Management and Process Improvement team and THTC “reported directly” to Ms Hartmann “as his manager”.[11]
[11] Exhibit 9 at [2].
In her statement, dated 7 October 2016, Ms Hartmann describes to her meeting with THTC, on 25 July 2013, as follows:
3.Soon after commencing work with [THTC] it became apparent that he did not have a Performance and Development Agreement (PDA) in place for the 2012/2013 cycle, which was meant to cover his goals, performance expectations and development up to June 2013.
4.[THTC’s] PDA should have been in place shortly after his commencement in the role of Assistant Director, and by February 2013 at the latest. [THTC] continually delayed completing his PDA during this period.
5.I recall that I was unable to access the PDA system because the specified time for submitting the PDA had passed and that when the PDA was completed it needed to be completed from a Word template which was provided to me by Human Resources. Attached to this statement and marked as Annexure A is a copy of tire PDA that covered the period ending in June 2013. That document refers in parts to the 2011/2012 performance cycle; this, is an error in the form which is likely due to the use of an out-dated template.
6.In early 2013 I became aware of significant issues relating to [THTC’s] performance, and my concerns with his performance were ultimately recorded in his 2012/2013 PDA.
7.I was aware that underperformance of staff members is often a difficult issue to raise with them and so I was cautious to ensure the correct policies were followed. I discussed my concerns regarding [THTC’s] performance with Jim Lightowler in the Department’s Human Resources department and sought advice on how to manage and assist [THTC] to improve his performance. As [THTC] did not have a current PDA at this time, I was advised to have discussions with [THTC] about his performance and to raise any issues in his PDA so that he could address them, prior to any formal performance management action being considered.
8.I recall arranging a meeting with [THTC] on 25 July 2013 to discuss my concerns regarding his performance and to finalise his overdue PDA for the 2012/2013 cycle.
9.At the time I had intended to send [THTC] a calendar invite to the meeting but later realised (when he did not attend on time) that I had not sent the meeting request to him. I therefore approached Doug in person and asked him whether he was able to attend the meeting. Doug agreed and raised no concerns about attending the meeting. If he had been concerned with attending the meeting at short notice I would have rescheduled the meeting for another day.
10.The meeting ultimately took place in the afternoon on 25 July 2013 within the privacy of my office.
11.I do not consider that the meeting that took place was a formal performance management meeting; instead it was an opportunity for me to give [THTC] my appraisal of his performance and again express my concerns about his performance.
12.The meeting was also an opportunity for me to check on [THTC’s] wellbeing as I was aware that he had been facing some personal adversities. The meeting was also an opportunity for me to discuss with [THTC] how we were going to finalise his PDA.
13.I recall approaching the meeting in a calm manner and that I began by asking [THTC] about his wellbeing as he had been on sick leave for two weeks prior to the meeting. I understand that this leave was in relation to difficulties he was having with tenants that rented his house in Perth that had caused significant damage. [THTC] advised me that he had sought medical assistance and had been given medication to manage his distress about these issues. I recall suggesting to [THTC] that he utilise EAP services and that [THTC] advised that he had done so on “many many occasions in the past”. I also recall addressing the need for [THTC] to complete a PDA by the end of the week and recall that [THTC] was provided with a template on the day of the meeting.
14.At the meeting I also raised concerns with his performance in relation to completing tasks within allocated timeframes. In particular I had concerns about the delivery of important aspects of the contract with the International Organisation for Migration (lOM) that [THTC] was tasked with completing. I recall that [THTC] indicated that he understood why I was raising concerns with him about his performance. I recall that [THTC] took notes throughout the meeting.
…
16.At no time during the meeting did I call [THTC] “a piece of shit”. I would never speak to a colleague or other person in this manner.
17.At no time have I used the possibility of formal performance management to threaten [THTC]. I was willing to give [THTC] an opportunity to address any concerns I had before moving to formally performance manage him.
Administrative action
The Tribunal considers that the appraisal of THTC’s performance in the meeting on 25 July 2013 constitutes administrative action for the purposes of the SRC Act because it falls within s 5A(2)(a) of the SRC Act: Reeve and see paragraph 14 above.
Reasonable administrative action
The Tribunal finds that it was “reasonable” for Ms Hartmann to appraise THTC’s performance during the meeting on 25 July 2013 because:
· Ms Hartmann was THTC’s direct supervisor who was responsible for assessing whether he was performing adequately;
· Ms Hartmann had formed the view that THTC’s performance was lacking and one aspect of where his performance was lacking was in complying with his obligation to complete his PDA[12];
· It was fast approaching the beginning of the 2013/2014 PDA cycle and so the 2012/2013 PDA needed to be finalised and therefore she needed to communicate to THTC that he needed to finalise his PDA as a matter of priority[13];
· The performance issues that were addressed in the meeting of 25 July 2013 did not constitute THTC’s PDA discussion and only focused on immediate concerns including:
o THTC completing his own PDA;
o THTC finalising the PDAs of the people in his team; and
o THTC responding to emails in a timely manner[14];
· None of the substantive performance issues that were ultimately addressed in the PDA discussion on 30 June 2013, were discussed in the meeting on 25 June 2013;
· Advising THTC of her concerns was part of Ms Hartmann’s role as his direct supervisor; and
· Providing regular feedback about performance issues is part of Ms Hartmann’s role as a supervisor.
[12] Exhibit 9 and Ms Hartmann’s oral evidence at hearing.
[13] Exhibit 9 and Ms Hartmann’s oral evidence at hearing.
[14] Exhibit 9 and Ms Hartmann’s oral evidence at hearing.
Consequently, the Tribunal finds that Ms Hartmann’s appraisal of THTC on 25 July 2013 constitutes “reasonable administrative action” for the purposes of s 5A(1) of the SRC Act: Reeve; Martinez (No 2).
Reasonable administrative action taken in a reasonable manner in respect of THTC’s employment with the Department
The Tribunal finds that the reasonable appraisal (administrative action) was undertaken by Ms Hartmann in a reasonable manner in respect of THTC’s employment with the Department because:
· The meeting occurred in a private room and the only two people in attendance were THTC and Ms Hartmann;[15]
· Prior to arranging the meeting, Ms Hartmann had obtained advice from HR and acted in accordance with that advice;
· Ms Hartmann approached the meeting “in a calm manner”;[16]
· During the meeting THTC agreed “to some extent, that he could understand why [Ms Hartmann] was raising concerns regarding his level of performance”;[17] and
· The meeting was amicable[18]: Keen; Re Georges and Telstra Corporation.
(ii) The meeting on 27 March 2014
[15] Paragraph 10 of the Statement of Ms Hartmann dated 7 October 2016 and Ms Hartmann’s oral evidence at hearing.
[16] Paragraph 7 of the Statement of Ms Hartmann dated 7 October 2016 and Ms Hartmann’s oral evidence at hearing..
[17] Exhibit 1 at p162.
[18] Exhibit 1 at p162.
The meeting on 27 March 2014
THTC claims that:
I consider the single incident that caused injury was the meeting of 27 March 2014 convened by the CSRB [i.e. Compliance Status Resolution Branch] Assistant Secretary David Walsh.[19]
[19] Exhibit 2 at p2.
THTC describes the meeting on 27 March 2014 as follows:
On 27 March 2014, I was called to a meeting by the then Assistant Secretary David Walsh (DW) in which I was subject to 'A targeted and prolonged, sustained verbal assault by the Assistant Secretary for the duration of the meeting (35-40 minutes) relating to my professional conduct and integrity’.
This meeting was called to discuss a previous meeting (25 March 2014) between my team and the team Assistant Secretary OPCB Fiona Lynch-Magor (FL-M) on matters relating to an issue driven by the then Minister for Immigration and also held the interest of the then Prime Minister. The issue related to offshore business in Port Moresby with consequences for the $26 Million contract I managed with the international Organization for Migration (IOM)* and has significant contractual consequences for OPCB operations particularly in relation to the movement of 'Asylum Seekers' between Christmas island, Nauru, Port Moresby and Manus Island. My team, the OPCB team and IOM coordinate, cooperate and communicate on a daily basis. This is so the obligations and responsibilities of these parties does not compromise the IOM/DIBP relationship and contract that I manage along with my team.
IOM* (est 1951) is a prestigious global entity that facilitates the orderly and humane management of migration, promotes international cooperation on migration issues, assists in the search for practical solutions to migration problems and provides humanitarian assistance to migrants in need, be they refugees, displaced persons or other uprooted people. Their head-office is located in Geneva. The IOM and their executive are accord all the protocols and privileges as a foreign Diplomatic Mission.
I manage (and supervise a specialist team) the Department's $26 million national contract with extra-territorial obligations namely Christmas Island, Nauru and Papua New Guinea (Port Moresby and Manus Island) but also globally where ever IOM operates and there are 'migration patterns' impacting on Australia. DIBP facilitates under this contract with the IOM the voluntary return of people to their home countries. I am fully accountable for the consequences arising out of the actions of all parties operating under the ambit of this contract and I do not take my responsibilities lightly.
My immediate supervisor was aware of this important meeting and had turned down her invitation to participate for reasons unknown to me. There was nothing out of the ordinary me and my staff attending this meeting, it was business as usual and my presence was expected and necessary.
Immediately, following the assault by DW on 27 March 2014, I met with the convenor of the earlier meeting of 25 March 2014 (OPCB Scott McMurtry - SM) and warned him what had just transpired with DW and asked if there were any 'hidden agendas' or 'politics' I should be made aware of. There was nothing apparent and SM said he would notify his Assistant Secretary (FL-M). I stated to SM that in more than a four-decade public service career I have never before been treated with such contempt by a supervisor for reasons I could not comprehend. If called upon, SM should be able to verify that I was shaken and visibly upset and distressed at that time. SM should also be able to confirm my participation in this meeting was essential and that my contribution was worthy and appropriate in advancing a high priority proposal.
Following this, I returned to my desk and computer, logged off not to return.
On 28 March 2014, I saw my General Practitioner in Canberra who certified me 'unfit for work' and suggested my return to Perth or possible hospitalisation in Canberra. This has since been confirmed by documents submitted by Dr Otesile Clinic in Canberra, therefore this date should be considered for the record the date of 'sustained injury’ rather than 4 April 2014 when I first consulted Dr Prnich in Perth.
I refer to the Witness Statement of Dana Mikenkovic particularly her comments (PT28 para 4 p296) her observations of my distress and emotive state on 29 March 2014. It was at her insistence I get on a plane and go home to Perth where I had support of family.
If not for this single incident with DW and his ‘verbal thrashing’ I would not have broken down. I was coping with and working through those issues both in my professional and private life prior to this incident. During this meeting Walsh humiliated me in front of my colleagues, questioned my integrity and professionalism and consequently destroyed my confidence and self-esteem and I hold him responsible for the destruction of my mental health and my career.
And this is not the first time!
The department has policy guidelines for the conduct of meetings particularly where disciplinary action is to be taken. I contend, and am now able to demonstrate that the meeting of 27 March 2014 convened by David Walsh seriously contradicted this policy for a number of reasons. I can also now demonstrate that the issues DW tried to address in the meeting were inconsistent with the facts, did not consider the importance or the urgency of the proposal and my critical role. I can demonstrate now that he was aware of the proposal so it was not a surprise as he implies.
… The meeting with DW was inconsistent with the real facts of the matter, contravened policy guidelines regarding conduct of meetings and, accounts of the conduct of the meeting are fabrications after the fact. The actions of DW were 'unreasonable' to say the least considering the gravity of the circumstances - show me otherwise.
…
I honestly thought I was going to a meeting and expecting a civil and productive conversation. Thirty minutes later I left his office an emotional wreck. This was not the mundane meeting the Delegate suggests. Obviously, something extraordinary has occurred. The evidence is apparent in all the professional experts that have assessed me since. While it was reasonable for DW to arrange the meeting of 27 March 2014, it was unreasonable to conduct it in the manner he did.
I was suicidal within a day or so of the meeting with DW on 27 March 2014.[20] [Emphasis added]
[20] Exhibit 2 at pp3-6.
The Tribunal finds that the meeting on 27 March 2014 constituted reasonable administrative action taken in a reasonable manner in respect of THTC’s employment with the Department and, as such, THTC’s recurrent major depressive disorder is excluded from the definition of “injury” in s 5A(1) of the SRC Act: Reeve; Martinez (No 2).
Further, the Tribunal finds that the medical evidence before it does not support THTC’s contention that the single incident that caused the injury was the meeting of 27 March 2014. In particular, Dr Spear, Consultant Psychiatrist, did not consider that THTC’s depression condition was significantly contributed to by the meeting on 27 March 2014.
Administrative action
That is, counselling THTC during the meeting on 27 March 2014, in relation to making commitments for work to be performed by the Offshore Processing Branch of the Department, constitutes administrative action for the purposes of the SRC Act because it falls within s 5A(2)(b) of the SRC Act: Reeve and see paragraph 14 above.
The minutes of the meeting on 27 March 2014[21], along with the statement of Mr David Walsh (then Assistant Secretary, Compliance and Status Resolution Branch of the Department)[22], the statement of Mr Glen Swan (then Assistant Director of the Returns and Removals Policy Section of the Department)[23] and the statement of Ms Nicailla Churchill (then Acting Director of the Returns and Removals Policy Section of the Department)[24], demonstrate that the meeting was held to determine precisely what had occurred in the meeting the day before, on 26 March 2014, and to counsel THTC about not committing to projects without the approval of his supervisors.
[21] Annexure B to the Statement of Glen Swan, dated 30 May 2016.
[22] Exhibit 7.
[23] Exhibit 5.
[24] Exhibit 8.
Reasonable administrative action
ln his undated witness statement[25], THTC states that he considered that having the meeting on 27 March 2014 was reasonable. When that was raised with him during cross- examination, THTC confirmed that he thought that it was reasonable for the meeting to occur for the purposes of determining precisely what had occurred in the meeting on 26 March 2014 and to discuss with him the need to obtain his supervisor’s (i.e. Mr Walsh’s) approval before committing to projects.
[25] Exhibit 2.
The Tribunal finds that the meeting on 27 March 2014 constituted “reasonable” administrative action for the purposes of s 5A(1) of the SRC Act: Reeve; Martinez (No 2).
Reasonable administrative action taken in a reasonable manner in respect of THTC’s employment with the Department
The Tribunal finds that the meeting (counselling) on 27 March 2014 was reasonable administrative action undertaken in a reasonable manner in respect of THTC’s employment with the Department (Keen; Re Georges and Telstra Corporation) because:
·It was reasonable in the circumstances for such a meeting to be conducted in Mr Walsh’s office;[26]
[26] Paragraph 9 of the Statement of Glen Swan, dated 30 May 2016.
·There is nothing in the minutes of the meeting that reveal that the meeting was conducted in any way other than a reasonable way;[27]
[27] Annexure B to the Statement of Glen Swan, dated 30 May 2016.
·According to Mr Walsh:
13.… I absolutely refute [THTC’s] characterisation of my behaviour, language and demeanour at the meeting. At no time during the meeting did I raise my voice. At no time in the meeting did I get in [THTC’s] face or cause spit to be projected onto him. I recall being calm at the meeting and would describe my manner at times as inquisitive and firm. I did press [THTC] and Glen about what was actually agreed at the prior meeting and I did pose questions to [THTC] asking him to clarify inconsistencies surrounding his recollection. At all times during the meeting l remained seated and did not act in an intimidating manner at any stage…;[28]
·According to Mr Swan and Ms Churchill, Mr Walsh spoke to THTC in a “matter-of-fact way” and at no time raised his voice towards THTC[29]. Mr Walsh “remained very calm and very measured” during the meeting.[30] He was “professional and courteous”;[31]
·According to Mr Swan:
19.At no time during the meeting did David belittle [THTC], insult him, abuse him or call his character into question. The meeting was completely focused on exactly what had happened on the first meeting and David spoke to him in a very measured and unanimated way;[32] and
·According to Ms Churchill:
12.… at no time did David yell at [THTC] or act in a threatening manner. David was firm with THTC and asked him to answer specific questions about the commitments he made to the Offshore Processing Branch which affected our branch. I believe David acted in a fair and appropriate manner towards [THTC] during the discussion and David did not belittle or berate [THTC] for his actions during the meeting.[33]
[28] Paragraph 13 of the Statement of David Walsh, dated 26 May 2016.
[29] Paragraph 13 of the Statement of David Walsh, dated 26 May 2016, and paragraph 15 of the Statement of Glen Swan, dated 30 May 2016.
[30] Paragraph 18 of the Statement of Glen Swan, dated 30 May 2016.
[31] Paragraph 9 of the Statement of Nicailla Churchill, dated 30 May 2016.
[32] Paragraph 19 of the Statement of Glen Swan, dated 30 May 2016.
[33] Paragraph 12 of the Statement of Nicailla Churchill, dated 30 May 2016.
Ms Churchill’s present recollection is consistent with her statement to Comcare in which she said:
At no time during this meeting did David Walsh raise his voice when speaking to [THTC] nor was his non-verbal communication delivered in the manner that [THTC] has described, i.e. his face was not livid nor were his eyes wide and glaring. David spoke to [THTC] in a direct and professional manner in an attempt to understand what offers [THTC] had made to the OPC branch. I dispute [THTC’s] claim that David Walsh spat on [THTC] and I do not recall [THTC] wiping David’s spittle (sic) from his face.[34]
[34] Exhibit 1 at pp114-115.
Conclusion – exclusionary provision
Whilst only one of the administrative actions, discussed above, needs to fall within the exclusionary provision in s 5A(1) of the SRC Act for THTC to be wholly disentitled to compensation in respect of his claimed condition, the Tribunal finds that both of the administrative actions identified in this case (refer to paragraph 57 above) amount to reasonable administrative action taken in a reasonable manner in respect of THTC’s employment with the Department. Accordingly, THTC’s claimed condition is excluded from being an “injury” under s 5A(1) of the SRC Act and Comcare is not liable to pay THTC compensation under s 14 of the SRC Act: Hart.
THTC’s return to work following the meeting on 27 March 2014
For completeness, the Tribunal notes that THTC takes issue with the fact that he was medically cleared for a graduated return to work within three months of his meeting on 27 March 2014. However, that did not happen. According to THTC, because that did not happen he had no choice but to lodge the Compensation Claim as he had “no means of financially sustaining” himself. Issues concerning THTC’s rehabilitation and return to work, following the meeting on 27 March 2014, are irrelevant to the Tribunals decision on this application.
DECISION
For the above reasons, the Tribunal affirms the Reviewable Decision.
I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh and Brigadier AG Warner, Member ........[Sgd]................................................................
Administrative Assistant
Dated 8 November 2016
Date of hearing 10-13 October 2016 Applicant In person Counsel for the Respondent Ms K Blackford-Slack Solicitors for the Respondent Sparke Helmore Lawyers
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