Vanessa Konstandopoulos and Comcare - [2014] AATA 741

[2014] AATA 741

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/1810

Re

Vanessa Konstandopoulos

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton
Professor Ron McCallum AO, Member

Date 14 October 2014

Place Sydney
The Tribunal sets aside the reviewable decision made by Comcare on 5 March 2013 and, in substitution, decides that Comcare is liable to pay compensation for Ms Konstandopoulos’s adjustment disorder with features of anxiety and depressed mood, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
.......................[SGD].................................................
Senior Member A K Britton
Professor Ron McCallum AO, Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Psychological injury — Whether the injury was contributed to, to a significant degree, by the employees employment by the Commonwealth — Whether the injury is a result of reasonable administrative action taken in a reasonable manner — meaning of “ suffered as a result of” —— Decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 35
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4; 5A(1); 5A(2); 5B(1); 5B(3); 14
CASES
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1
Re Drenth and Comcare (2011) 123 ALD 587
Re Wang and Comcare [2012] AATA 242
Wiegand and Comcare [2012] AATA 623
Re Silk and Comcare [2012] AATA 638
SECONDARY MATERIALS
Comcare Jurisdictional Policy Advice (Number 12 of 2009 (issued 13 November 2009))
REASONS FOR DECISION
Senior Member A K Britton
Professor Ron McCallum AO, Member
14 October 2014

Former Centrelink employee Vanessa Konstandopoulos challenges the decision made by Comcare to refuse to accept liability for her claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an “adjustment disorder with features of anxiety and depressed mood”. Ms Konstandopoulos has asked the Tribunal to review the matter. For reasons we will explain, we have decided to set aside Comcare’s decision.
The parties agree that Ms Konstandopoulos was suffering an adjustment disorder (variously described) when she made her claim for compensation in June 2012. They also agree that Ms Konstandopoulos’s adjustment disorder was contributed to, to a significant degree, by her employment with Centrelink. The key issue in dispute is whether Ms Konstandopoulos’s condition was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [Ms Konstandopoulos’s] employment”. The answer to that question turns on the following issues:
Whether Ms Konstandopoulos’s adjustment disorder was suffered as “a result of” any of the following three actions (collectively, “the disputed decisions”):
(i)the decision not to appoint Ms Konstandopoulos to the position of acting team leader (the promotion decision)
(ii)the decision not to award Ms Konstandopoulos a higher “pay point” (the pay point decision)
(iii)the refusal of Ms Konstandopoulos’s request to take six weeks annual leave in December 2011 (the annual leave decision)

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 Vanessa Konstandopoulos and Comcare

Details

AGLC: Vanessa Konstandopoulos and Comcare [2014] AATA 741
Case: [2014] AATA 741
Decision Date: 14 October 2014

CaseChat Overview and Summary

The applicant, Ms Vanessa Konstandopoulos, sought compensation from Comcare for an anxiety disorder that she claimed was contributed to, to a significant degree, by her employment with Centrelink. The central issue before the Administrative Appeals Tribunal was whether the anxiety disorder was "suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [Ms Konstandopoulos's] employment". The Tribunal needed to determine if the anxiety disorder was caused by specific employment decisions, and if those decisions constituted reasonable administrative actions.

The Tribunal examined three employment decisions: the decision not to appoint Ms Konstandopoulos as acting team leader, the decision not to award her a higher pay point, and the refusal of her request for six weeks of annual leave. The Tribunal concluded that the anxiety disorder was not a result of these decisions but was instead due to her interactions with her manager, Manager A. The Tribunal found that Manager A's behaviour, which included undermining Ms Konstandopoulos's leadership and having mood swings, contributed significantly to her condition. However, these actions were deemed reasonable administrative actions taken in a reasonable manner. Consequently, the Tribunal determined that Comcare was not liable to pay compensation for the anxiety disorder.

The Tribunal also addressed a request by Comcare for confidentiality orders to prevent the publication of the names of two Centrelink managers mentioned in Ms Konstandopoulos's evidence. The Tribunal agreed to prohibit the publication of Manager A's name due to the personal and potentially prejudicial nature of the allegations against her. However, the Tribunal refused to prohibit the publication of the second manager's name, finding the allegations against that manager were not particularly egregious or offensive.

Orders

Orders of the court

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Background

Background to the litigation

“Disease” is defined as: “(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” (s 5B(1)). “Ailment” in turn is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)” (s 4). “Significant degree” means “a degree that is substantially more than material” (s 5B(3)).Background Ms Konstandopoulos commenced working with Centrelink in 1988. In May 2011 she was transferred to the Marrickville office of Centrelink and appointed acting team leader under the supervision of Manager A. That appointment expired in August 2011 and Ms Konstandopoulos resumed her substantive position as a customer services officer (CSO) at Centrelink’s Leichhardt office. On Christmas Eve 2011, Ms Konstandopoulos suffered a severe panic attack at the local shopping centre. Over the ensuing weeks she attended the emergency department of her local hospital on several occasions. She was eventually diagnosed as suffering from an anxiety disorder. She has been under the care of a psychiatrist since June 2012. Ms Konstandopoulos did not return to work after the Christmas Eve panic attack. In May 2013 her employment with the Australian Public Service was terminated on the grounds of “inability to perform duties on account of mental incapacity”.Ms Konstandopoulos works as a team leader at Centrelink’s Marrickville office Shortly before commencing at Marrickville in May 2011, Ms Konstandopoulos started to experience gynaecological problems, which included heavy bleeding. She was referred to a specialist and, in September 2011, underwent surgery, which apparently resolved the problem. She claims that she found the period prior to surgery distressing and confronting. In the first of a number of statements prepared in the context of her claim for compensation, dated 13 June 2012 (Ms Konstandopoulos’s first statement), Ms Konstandopoulos stated she did not know how to deal with Manager A, who undermined her leadership and, on occasion, reminded her in front of other staff that her position as team leader was a temporary appointment. She wrote that Manager A was known to be “intimidating and domineering and had wild mood swings”. Manager A testified that when she learnt of Ms Konstandopoulos’s mistreatment allegation in August 2012, she was “taken aback”. She claimed that while she and Ms Konstandopoulos were not friends they often talked about their respective families and had a good relationship. She denied reprimanding Ms Konstandopoulos in front of staff. Manager A stated that when approached to take on Ms Konstandopoulos by Ms Konstandopoulos’s previous manager she was told she had “performance issues”. She claimed that nonetheless she welcomed the challenge to develop Ms Konstandopoulos’s skills as a team leader.Ms Konstandopoulos confides with mentor about Manager A

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties agree that Ms Konstandopoulos was suffering an adjustment disorder (variously described) when she made her claim for compensation in June 2012. They also agree that Ms Konstandopoulos’s adjustment disorder was contributed to, to a significant degree, by her employment with Centrelink. The key issue in dispute is whether Ms Konstandopoulos’s condition was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [Ms Konstandopoulos’s] employment”. The answer to that question turns on the following issues:Whether Ms Konstandopoulos’s adjustment disorder was suffered as “a result of” any of the following three actions (collectively, “the disputed decisions”): (i)the decision not to appoint Ms Konstandopoulos to the position of acting team leader (the promotion decision)(ii)the decision not to award Ms Konstandopoulos a higher “pay point” (the pay point decision)(iii)the refusal of Ms Konstandopoulos’s request to take six weeks annual leave in December 2011 (the annual leave decision)If so, whether that action(s) constitutes “reasonable administrative action taken in a reasonable manner”.Request for confidentiality orders Comcare applies for orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) prohibiting the publication in our reasons for decision, of the names of two nominated Centrelink managers. Comcare contends that the evidence given by Ms Konstandopoulos contains baseless allegations of a highly personal nature and those managers would suffer prejudice if those allegations were to be published. Ms Konstandopoulos disputes that characterisation of her evidence and opposes Comcare’s application. We agree that a number of the allegations made about one of the managers, the subject of Comcare’s confidentiality application are personal in nature and potentially prejudicial. Identifying that manager as the subject of those allegations is likely to cause her considerable distress. For that reason, despite the presumption in favour of openness enshrined in s 35 of the AAT Act, we have decided to make directions prohibiting the publication of her name in relation to these proceedings. In these reasons we will refer to her by the pseudonym, “Manager A”. We are not persuaded that the same considerations arise in relation to the second manager the subject of Comcare’s application. The offending allegations made about that manager were neither personal nor particularly egregious or offensive. For that reason we refuse to prohibit the publication of that manager’s name.The Legislative Scheme Comcare will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Ms Konstandopoulos if it results in impairment or incapacity for work (s 14 of the Act). The Act defines “injury” to mean (s 5A(1)):a disease suffered by an employee; … 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.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1810
Re	Vanessa Konstandopoulos
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member A K Britton Professor Ron McCallum AO, Member
Date	14 October 2014
Place	Sydney