Timothy Crawford and Comcare

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[2013] AATA 405

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/5542

Re

Timothy Crawford

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Ms G Ettinger, Senior Member and Dr S Toh, Member
Date 18 June 2013
Place Sydney

The Tribunal affirms the decision under review.

..............[sgd]..........................................................

Ms G Ettinger, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – whether the applicant is eligible for compensation for his psychiatric condition – whether condition was a result of reasonable administrative action taken in a reasonable manner – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 7, 14

CASES

Hart v Comcare (2005) 145 FCR 29

Shi v Migration Agents Regulation Authority (2008) 235 CLR 286
Re von Stieglitz and Comcare [2010] AATA 263

REASONS FOR DECISION

Ms G Ettinger, Senior Member and Dr S Toh, Member

18 June 2013

SUMMARY

  1. Mr Tim Crawford, aged 52, has been a Protective Service Officer (PSO) with the Australian Federal Police, (the AFP), since 2001. He had previously worked in the private sector. Since 2008, he has held a Top Secret security clearance, (the highest level). He is a recipient of the National Manager’s Certificate awarded in recognition of professionalism, commitment and outstanding performance. He was a PSO at Sydney Airport from 2005 till his move to the Gold Coast Airport in 2009. While at Sydney Airport he qualified as a Bomb Appraisals Officer (BAO). His substantive position is still in Sydney.

  2. Mr Crawford told us that he applied for a transfer to the Gold Coast Airport in 2007 in order to assist his mother with his father, who was diagnosed with dementia. We noted from an AFP Minute that his application for a transfer was lodged on 26 March 2008. Approval was granted on 26 March 2009 by the Transfer Committee in Canberra for a compassionate transfer, which generally is for a period of one year, provided a position becomes available. In giving its approval the Committee did not specify a commencement date, and no final documentation had been issued. Mr Crawford was told that his transfer to the Gold Coast Airport was contingent on another officer completing his training for IDG deployment, and Mr Crawford taking his position on a temporary basis.

  3. Despite not having documentation, referred to as paper work, specifying a start date Mr Crawford appears to have taken matters into his own hands, and on 15 May 2009, widely publicised his farewell from Sydney Airport. He also gave up his lease, took his children out of day care, and relocated to Queensland on or about 1 June 2009.

  4. Mr Crawford ultimately served two years of compassionate (temporary) posting at the Gold Coast Airport, from 6 July 2009. Mr Crawford was hopeful during his posting on compassionate grounds of obtaining a permanent position at Gold Coast Airport. He felt while he was there, that he had been overlooked when permanent positions became available. It appears that Mr Crawford could improve his prospects of attaining a permanent position at the…

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Details
Case
[2013] AATA 405
Decision Date

CaseChat Overview and Summary

In the case of Timothy Crawford and Comcare, the primary issue was whether Mr Crawford's psychiatric condition was compensable under the relevant legislation. Mr Crawford, a former Australian Federal Police (AFP) officer, claimed his condition arose from his employment and sought compensation. Comcare, the respondent, argued that the condition was a result of reasonable administrative action taken in a reasonable manner and thus not compensable. The case was heard by the Administrative Appeals Tribunal (AAT), which had to determine whether Mr Crawford's claims were valid under the statutory framework.

The central legal issue was whether Mr Crawford's psychiatric condition, diagnosed as an Adjustment Disorder, was caused by reasonable administrative actions taken by the AFP in the course of his employment. The Tribunal had to consider the extent to which Mr Crawford's employment conditions and interactions with his superiors contributed to his condition. Specifically, it needed to assess if the condition was the result of reasonable administrative actions, which would exclude it from compensation under the Act.

The Tribunal examined the evidence and found that Mr Crawford's psychological condition was not solely due to reasonable administrative actions. While the Tribunal acknowledged that Mr Crawford suffered from a psychiatric disorder significantly contributed to by his employment, it concluded that the condition was not a result of reasonable administrative action taken in a reasonable manner. The Tribunal found that Mr Crawford's claims of harassment and mistreatment by AFP management did not meet the statutory criteria for compensation. The evidence showed that Mr Crawford had been aware of the conditions for his transfer and had acted upon the assurances provided by his superiors. The Tribunal also noted that Mr Crawford's family pressures, particularly his father's dementia, had a psychological impact on him, but these factors were not the sole cause of his condition.

The Tribunal ultimately affirmed the decision under review, ruling that Mr Crawford's condition was not compensable. The reasoning hinged on the interpretation of the statutory provisions and the evidence presented regarding the nature of Mr Crawford's employment and the administrative actions taken by the AFP. The Tribunal's decision was based on a detailed analysis of the evidence and the application of relevant legal principles to the facts of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr Dodd sought to extend the ambit of the claim by including detail Mr Crawford provided in a letter of 30 June 2011, and referring to the fact Comcare was also asked for further comment to respond to the matters raised in this letter. We are satisfied that whilst the Tribunal can, pursuant to Shi v Migration Agents Regulation Authority (2008) 235 CLR 286 take into account facts and circumstances up to the time of the review, the ambit of the claim cannot be widened in the way Mr Dodd has suggested. We are also not satisfied there is evidence of a further injury or aggravation as may have been suggested, and no claim has been made for one.BACKGROUND TO THE CLAIM Mr Crawford’s first posting as a PSO, which was for two and a half years, was at Kirribilli House commencing in 2001. He stated that he had no issues with management and received excellent reports as to his attendance, conduct and performance. He was then transferred to the Diplomatic Protection Unit for two years with similar results he claimed, following which he was transferred to Sydney Airport. Mr Crawford told us that in 2007, he requested a transfer to the Gold Coast Airport because his father had developed severe dementia, and he was required to assist his parents. For the sake of completeness, we note that the evidence indicates his application for a transfer was made on 26 March 2008. Mr Crawford’s evidence was that although he had been on the transfer list for some time, nothing had happened by 2009. He said that in May 2009 he approached Superintendent Warren Gray, then Sydney Airport Police Commander to progress the transfer. In cross-examination, he agreed it had been an informal approach to Mr Gray. However, Mr Crawford claimed the transfer took place with the personal assistance of Mr Gray, and also claimed that Mr Gray assured him that once he was up at the Gold Coast Airport on a temporary transfer, the position was likely to become permanent. When questioned, Mr Crawford told us that he understood his transfer in 2009 was a compassionate transfer, and also understood that it was for a period of 12 months. He said that at the time of moving to the Gold Coast, he thought he had confirmation of a commencement date, and wasn’t sure he needed paperwork confirming this, because as far as he understood, the transfer was approved. Further on in the cross-examination, Mr Crawford was asked: You, when you moved from Sydney, didn’t have a commencement date in the Gold Coast, did you? He replied: Apparently not. We noted an email from Mr Kopsaris to Mr Crawford dated 15 May 2009, indicating he had no commencement date at the Gold Coast Airport, and no release date from Sydney. Notwithstanding, Mr Crawford gave notice regarding his lease, took his children out of daycare, and moved to the Gold Coast on or about 1 June 2009. Notwithstanding the emails and other indications Mr Crawford had that no start date had been confirmed for the Gold Coast Airport, Mr Crawford said that he thought it would be like at Sydney where he was just told to turn up and sign the paperwork then and there. The evidence indicates that Mr Crawford knew that the position he was going to fill would only arise when the previous incumbent had completed a course before his deployment overseas. He said, however, that he expected a start date in early June 2009 (according to what Mr Gray told him), although he had heard 25 May 2009 could be suitable, so because it was a self-relocation, he simply relocated his family to the Gold Coast.

Evidence

Evidence Before The Court

We continue with the evidence of Mr Crawford and the AFP officers who gave evidence before us, noting that due to the voluminous amount of correspondence, not all detail was relevant, or could be included.EVIDENCE Mr Crawford told us that he applied for a transfer to the Gold Coast Airport in order to assist his parents in 2007, although we understand the application was dated 26 March 2008. We noted that the Transfer Committee met in Canberra on 26 March 2009, following which Mr Crawford was sent an email dated 31 March 2009, in which it was stated:The Transfer Committee met on Thursday 26 March 2009 and your transfer at own expense application to transfer from Sydney Airport to Gold Coast Airport has been approved for a period of 12 months only.Tim – can you please advise if you would like to accept this offer.Harry [Kopsaris, Team Leader CTFR, Sydney Airport] and Mark [Wrench OIC CTFR, Gold Coast Airport] – can you please arrange a suitable release date for PSO Crawford so I can draw up the appropriate paper work. Mr Mark Wrench, OIC, CTFR at Gold Coast Airport also emailed Mr Crawford, Mr Kopsaris and Ms Penny Flanagan, (Business Management Team, Protection) on 31 March 2009 informing them that the person whom Mr Crawford would be replacing would be commencing his course on 25 May 2009, and that a transfer at around that date would be reasonable. He emphasised that the officer’s deployment was dependent on him passing his final qualification, and that Mr Crawford’s appointment at the Gold Coast Airport was dependent on that. Ms Flanagan also informed Mr Crawford on 31 March 2009 that the transfer was at his own expense, and for a period of 12 months only. As the email was also sent to Mr Kopsaris and Mr Wrench, she asked them for a release date so that she could prepare the appropriate paperwork. We note the reference to the need for paperwork to be drawn up once the release date was agreed. We were satisfied from the above, and notwithstanding Mr Crawford’s statements to the contrary at first, that he was fully aware of all the circumstances on which the transfer was contingent, in particular that he was required to have confirmed dates and the relevant paperwork. Mr Crawford told us that following his application, he had not been given any indication when the transfer might occur. Because he felt the situation with his father required his involvement, and he was required to assist his mother at the Gold Coast, he approached Mr Gray for assistance. He said that he had a meeting with Mr Warren Gray on 4 May 2009. We noted that Mr Gray’s evidence regarding his involvement in Mr Crawford’s compassionate transfer differed substantially from that of Mr Crawford. Mr Crawford told us that he approached Mr Gray, in order to obtain a transfer to the Gold Coast Airport. In cross-examination, he agreed it had been an informal approach to Mr Gray. However, Mr Crawford claimed the transfer took place with the personal assistance of Mr Gray, and also claimed that Mr Gray assured him that once he was up at the Gold Coast Airport on a temporary transfer, the position was likely to become permanent. After the meeting on 4 May 2009, Mr Crawford wrote an email to Mr Gray in the following terms:Thanks for your time today Boss… My family and I have completed everything thus far, including transfer of bank accounts, notification and cancelation [sic] of household utility companies, licences etc. The final 2 items on the transfer agenda are 1) 21 day written notification of cessation of occupancy to the real estate agent which will be next Monday the 11th of May, as the movers arrive on Monday the 1st of June. and 2) confirmation that the AFP transfer is in effect. All being on Schedule, I will apply for leave, through Harry [Kopsaris], on Monday the 1st of June for 1 week, then start at Gold Coast on Monday the 8th of June officially. If there are any issues with that schedule if I could be contacted prior to the 11th of May as I have to notify the real estate agent by then.Much Obliged for everything you have done. If it wasn’t for you Boss, I don’t believe the transfer would have gone through at this time. I am very aware and very appreciative of all your efforts.

Decision

Reasons for decision

We are satisfied that Mr Crawford’s psychological condition is not compensable because it resulted from reasonable administrative action taken in a reasonable manner. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Commander John Bourke, now OIC, AFP, of Adelaide, Melbourne and Hobart Airports gave oral evidence at the hearing about CRAMS 3316, the bomb disposal complaint in which Mr Crawford was involved. The event took place on 21 April 2009, and the complaint made the following day, was found to be established on 29 June 2009 (Exhibit A5), before Mr Crawford had been given the opportunity to comment. The letter of 29 June 2009 at T32/437 indicated that the National Team Leader, BAO Program determined that Mr Crawford be stood down from BAO duties until a debriefing could be held, and a decision made whether further training was required. Mr Crawford’s reply on 17 July 2009 indicated: BAO procedures were carried out correctly to the best of my knowledge.CONSIDERATION AND CONCLUSIONS As noted above, the Tribunal has accepted, and Comcare does not dispute that Mr Crawford suffers a psychiatric disorder, being Adjustment Disorder, (also referred to as Anxiety State and Depressive Disorder in the delegate’s determination), which has been contributed to, to a significant degree by his employment with the AFP. Pursuant to section 7(4) of the Act, the deemed date of injury is the date on which the employee first sought medical treatment for the condition for which compensation is sought. We are satisfied, in this case, that that was Mr Crawford’s consultation with Dr De Wilde on 8 June 2010. We noted that Dr Synnott opined that Mr Crawford may have been suffering a psychiatric condition which did not impair or incapacitate him for work in 2009, and that Ms Reynolds diagnosed adjustment issues in 2010. The question this Tribunal has to determine is whether Mr Crawford is eligible for compensation for his psychiatric condition, or whether it is excluded pursuant to section 5A of the Act on the basis that the condition he suffered was as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. We note from Hart v Comcare (2005) 145 FCR 29 that if an injury is the result of an excluded cause it is immaterial if other employment related causes may have also contributed to the injury. Mr Crawford’s claim for compensation to which we have referred above, was primarily concerned with his feelings of being harassed, alienated and treated with disdain by the AFP management at the Gold Coast Airport. However, we discerned from the evidence that the issues raised by Mr Crawford in regard to the cause of his psychological condition have related to:·His requests to transfer to the Gold Coast Airport;·His treatment at the Gold Coast Airport;·The determination by the AFP that he did not pass the Integrity Module in order to transition to a sworn officer;·His view that he was overlooked for a permanent transfer, that is his failure to obtain such a benefit. We are aware also of the family pressures Mr Crawford has suffered as a result of his father’s illness, and that he told us he applied for a transfer to the Gold Coast Airport in that regard in 2007. We note also Dr Synnott’s evidence that Mr Crawford did not mention his father’s dementia to him, the assistance he was required to give his mother, and accordingly its impact on him, all of which Dr Synnott said would have had some psychological impact on him. We are mindful also of the AFP policy regarding compassionate transfers which are intended to be short term. It is also not in dispute that by May 2011, Mr Crawford’s father was in permanent residential care, and did not require the daily attention he may previously have had from his son.