Voss and Comcare (Compensation)
[2016] AATA 515
•21 July 2016
Voss and Comcare (Compensation) [2016] AATA 515 (21 July 2016)
Division
GENERAL DIVISION
File Number(s)
2014/4481
Re
Michael Voss
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott
Date 21 July 2016 Place Brisbane In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975, the reviewable decision dated 24 July 2014 is set aside and in substitution it is decided that the applicant is entitled to compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 for the claimed condition of major depressive disorder. For the purposes of s 7(4) of the Safety, Rehabilitation and Compensation Act 1988, the applicant should be taken to have sustained an injury on 19 July 2013.
........................[sgd].............................................
Deputy President Dr P McDermott
CATCHWORDS
COMPENSATION – Major depressive disorder – Whether reasonable administrative action – Whether taken in a reasonable manner – Employment contributed to injury – Not reasonable administrative action – Not taken in a reasonable manner – Decision under review set aside – Applicant entitled to compensation
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7(4), 14
CASES
Comcare v Mooi [1996] FCA 1587
National Australia Bank Ltd v KRDV (2012) FCR 436
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Peters v Comcare [2013] FCA 808
Peters v Comcare [2013] FCA 1361
National Australia Bank Ltd v KRDV (2012) FCR 436
Long v Comcare [2016] FCA 737REASONS FOR DECISION
Deputy President Dr P McDermott
21/07/2016
INTRODUCTION
The applicant has sought a review of a Comcare decision dated 24 July 2014 which revoked a determination of 27 February 2014 and substituted a decision that the respondent was not liable to pay the applicant compensation in respect of a “major depressive disorder, single episode” condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
BACKGROUND
In 2011 the applicant was a regional manager working in the Supply Chain Assurance Framework (SCAF) section of the Department of Defence. His position was based in Brisbane. At about that time the Department established the Army Compliance and Assurance Agency (ACAA), which would assume the functions of the SCAF. There had been a number of consultations before the Chief of Army signed the Directive on 21 May 2013 regarding the final structure of the new ACAA.
On 19 July 2013 the applicant attended a meeting at which he was advised that a decision had been made to relocate his position to Canberra. Colonel Suzanne Melotte (the Deputy Adjutant General), Lieutenant Colonel Denise Oliver and Ms Stephanie Elwin were at that meeting. The applicant states that he suffered a depressive condition as a result of being told that his position would be relocated to Canberra. The applicant states that during the consultation process he had received a number of assurances that his position would remain in Brisbane.
CLAIM FORM
The applicant lodged a claim for workers’ compensation dated 18 October 2013 in relation to a major depressive episode of moderate severity. The applicant nominated the date of 19 July 2013 as being the date when he was injured or when he noticed that he was ill. The applicant first sought treatment for the condition on 24 July 2013.
LEGISLATION
5. Section 14 of the Act provides that the respondent is liable to pay the applicant compensation “in respect of an injury suffered by [him] if it results in death, incapacity for work or impairment.”
Under s 5A(1) of the 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.
Section 5A(2) of the Act states:
(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.
Under s 5B(1) of the 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.
9. Subsection 5B(2) of the Act provides:
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.
The term “significant degree” is defined in s 5B(3) of the Act to mean “a degree that is substantially more than material.”
AILMENT OF APPLICANT
The respondent accepts that the applicant suffered from a condition “outside the boundaries of normal mental functioning and behaviour” in accordance with the decision inComcare v Mooi [1996] FCA 1587 at [12].The respondent also properly accepts that the available medical evidence is conclusive that the applicant suffered from a major depressive episode of moderate severity. This has been confirmed by the medical reports of Drs Albrecht and Ng, psychiatrists, who have both provided comprehensive psychiatric reports for the respondent and the Department. In reliance on those reports I find that the applicant suffers from major depressive disorder which is an ailment within the meaning of disease in s 5A of the Act.
AILMENT WAS CONTRIBUTED TO IN A SIGNIFICANT DEGREE BY THE APPLICANT’S EMPLOYMENT
I also find that the major depressive disorder ailment of the applicant was contributed to, in a significant degree, by an employee's employment by the Commonwealth. I consider that the concession of the respondent that the meeting on 19 July 2013 was a significant contributing factor to the development of the applicant’s claimed condition was properly made. This is because the evidence before me is that the meeting was the only cause of the ailment of the applicant and there is no evidence that there was no other cause of the ailment.
Question 12 of the claim form asked “When were you injured or when did you first notice you were ill?" In answer to this question the applicant answered “Date 19 July 2013… Time 11 am". There is no evidence before me to suggest that this answer is not correct.
The applicant in his statement dated 4 November 2013 commented on the effect that the meeting of 19 July 2013 had to his condition. He remarked:
“To now hear those words coming from the same person that has been reassuring us we would not be moving to Canberra was overwhelming... My mind was now running overtime and I was trying to (during the meeting) work out a timeline on when the decision was made, and realised not only did they know about this decision approximately two months ago, they also asked for this outcome at the Unit Establishment Review... This made me very angry and I was not interested in hearing anything else, I wanted the meeting to be over, as I was worried that I might say or do something that I would regret... I left the meeting and was struggling with the information that I had just been informed of, it seemed like my whole life was imploding... I arrived at work on the 19th of Jul 2013 without a Mental Illness, during the course of the day the way that my workplace handled this situation has caused me to suffer from a Mental Illness, I left work on the 19th of Jul 2013 a changed man and have been struggling ever since.”
Dr Albrecht in his report of 31 January 2014 has commented that “The meeting in July 2013 was pivotal regarding Mr Voss’s current situation since then”.
WHETHER THE MEETING WAS REASONABLE ADMINISTRATIVE ACTION
I next have to determine whether the meeting of 19 July 2013 came within the reasonable administrative action exclusion in s 5A(1) of the Act. The respondent contends that the meeting was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.
Central to the case of the applicant is his contention that “we were always assured our positions would not be moved to Canberra, that is the whole point".[1] The applicant maintains that during the consultation process he was reassured by Brigadier Reynolds and Colonel Melotte that his position would not be relocated. The applicant therefore contends that he was not consulted about whether his position might move to Canberra.
[1] T26/p300.
The respondent does not accept this contention and instead contends that the applicant was informed on numerous occasions throughout the process that while the preference was that he be able to remain in Brisbane there remained the possibility that his position may be relocated. The respondent also disputes the applicant’s contention that he was assured that his position would not be relocated and has called a number of witnesses who have given evidence to the contrary. The respondent relies on the statements of Colonel Melotte, Lieutenant Colonel Oliver and the applicant’s former manager, Lieutenant Colonel McCarthy, in support of the contention that during the consultation the applicant was never assured that his position would not be relocated.
Lieut Col McCarthy in his statement of 13 July 2015 has stated that in 2011 he was unaware what the final structure of the ACAA would look like so he would not have told the applicant that his position was moving to Canberra, nor that it was staying in Brisbane. He states that he warned the staff about a distinct possibility that their positions would be relocated. In informal conversations with the regional managers he advised them that they “should buy some warm socks" because there was a likelihood that they may have to move to Canberra. He “made an effort to always remind the staff that this was a possibility to allow them to prepare and avoid them being blind sighted [sic] if a decision was made to relocate their positions in the future”.
Col Melotte in her statement of 6 July 2015 remarked that in November 2012 consultation workshops were held in regional locations including Brisbane. Col Melotte recalls that she advised the applicant that one of the courses of action that was put to the Adjutant General involved a remote concept whereby his position would remain in Brisbane to coordinate risk profiling and scheduling but she was advised that this model went against the concept of centralised command and control wanted by the Adjutant General. Col Melotte stated that if this particular course of action went ahead it would have to go through a trial to see if it would actually work.
Similar evidence in this regard was given by Mr Andrew Mertz who was called by the applicant and who stated that at a 27 November 2012 workshop the applicant, himself and another person were told they would work in the office of the Adjutant General from their regional locations. This evidence is corroborated by an email dated 3 December 2013 from Mr Paul Saunders to Col Melotte, summarising meetings held on 27 and 28 November. Mr Richard Miskiewicz had stated that his role was discussed at a presentation that was held in Townsville. He remarked: “Essentially there was to be no change to my role within the organization, nor was there any mention that my position would be relocated”.
Having regard to this evidence I conclude that the applicant would have quite legitimately assumed after the November meeting that he would have continued to work from the Brisbane location when the ACAA became operational.
Col Melotte in her statement refers to an event where there was further consultation with Brisbane staff and says that she told the applicant “and other change affected employees that my preferred plan was not being supported and that it was likely that a number of positions would be located in Canberra”. In her original statement Col Melotte says that this event occurred in February 2013. In giving evidence, she corrected her statement by saying that the event occurred in November 2012. I cannot with any certainty make a finding as to the date of when the applicant was advised that a number of positions would be located in Canberra. Even if such a statement was made in November 2012 it would have been overridden by any assurance that was later made by the communication of Col Melotte of 19 February 2013.
An ACAA induction meeting was held on or about 29 January 2013 to 1 February 2013 in Canberra. Col Melotte in her statement says that on 30 January 2013 there was a presentation and discussion with members of staff about the proposed course of action and staff were invited to have a one on one session with the Adjutant General. In her statement Col Melotte remarked that the meeting was in Brisbane. However, in giving evidence she corrected her statement by stating that the meeting was in Canberra and not Brisbane. The other witnesses have verified that the induction meeting was in Canberra. I am satisfied that the meeting was in Canberra.
There is a dispute between the witnesses who were called by the applicant and the respondent about whether or not an assurance was given to him as to whether his position would remain in Brisbane. Mr Andrew Mertz who was called by the applicant says that on 1 February 2013 Brigadier Reynolds, the then Adjutant General, had spoken to the supply element chain staff and had said that “she had fought to retain all the APS positions and that there were no plans to relocate any of us”. A similar statement was given by Mr Richard Miskiewicz. A number of witnesses who were called by the applicant stood firm in their evidence that the APS staff had received an assurance that their positions would remain in the regional locations. Mr James Somerville in his statutory declaration of 11 September 2015 has declared that at the induction meeting the Adjutant General was asked a question by Mr Miskiewicz as to whether any SCAF members are to be relocated and the Adjutant General had replied: “No SCAF members are going to be relocated”. The applicant himself has recognised that such an assurance was not a guarantee that the position that he filled would not be moved in the future by the officer who replaced Brigadier Reynolds as Adjutant General.
It is fair to say that in an induction meeting that was conducted over a number of days not all persons who attended the meeting would be present at all times in the meetings as people would have to absent themselves from the meeting for various reasons. The officer who had been the Adjutant General was not prepared to sign a statement that had been prepared for her by the respondent about what happened at the induction meeting. In evidence is an email from her present office in Parliament House, stating that the applicant’s recollections do not accord with her recollections and that the applicant was never advised by her that the APS position that the applicant was filling at the time would remain in Brisbane.[2] That officer has not been called by the respondent to give evidence before the Tribunal. No application had been made for the hearing to be adjourned to a time that would be convenient for her to give evidence and to be available for cross-examination.
[2] Exhibit Q.
It would not be fair for me to place weight on the email of the officer who had served as the Adjutant General where she has not signed a statement and had not been called as a witness by the respondent and been available for cross-examination by the respondent.
I have also concluded, contrary to the submissions of the respondent, that it is not necessary for me to make a finding as to whether the applicant had received an assurance from the then Adjutant General that he would not be relocated to Canberra. This is because at the time of the induction meeting there was no indication of the final structure of ACAA. Such an assurance was later provided to the applicant in the form of a document “Consultation Feedback and Responses” (which was stated to be correct as at 11 February 2013) which indicated that the position of the applicant was not then being considered for relocation. It is also not necessary for me to make a finding as to whether the applicant had received an assurance from the Adjutant General that he would not be relocated to Canberra if I consider that the meeting of 19 July 2013 does not constitute “reasonable administrative action” within the meaning of s 5A(1) of the Act.
During the hearing of this application it was apparent that Col Melotte had sent an email dated 19 February 2013 in relation to the final structure of the ACAA. However, that email was not in evidence and it was not referred to in her statement. I therefore called for that email to be produced to the Tribunal. Col Melotte has indicated after she gave evidence that she did not retain a copy of that email. That email was produced at the conclusion of the hearing only because Mr Richard Miskiewicz had retained a copy of that email. That email refers to the “proposed future ACAA organisational structure” and refers to the fact that the feedback “over the past 2 months has valuably contributed to the final design and/or refinement of the role assignments within the future structure”. That email was sent a few weeks after the ACAA induction meeting. It could reasonably be assumed by offices that would transition to the ACAA that a final structure of the ACAA had then been determined.
An attachment to the email of 19 February 2013 is a document entitled “Consultation Feedback and Responses” which was stated to be correct as at 11 February 2013. That document contains a feedback question: “is the relocating of teams and individuals from regions or even within regions really cost effective, short or long term?” The response to that feedback is as follows:
“The only relocations being considered are:
MAS team: TSV to BNE all movements to be completed at the posting change of personnel.
OC SQ: FT MAJ Finance from CBR to BNE.
OC NQ: FT MAJ from CBR to TSV & reassigned to EME
When current asset is considered scarce or providing crucial skills and experience. It is generally cheaper and smarter to retain corporate knowledge where the work can accommodate this than to relocate or redeploy or retrench them and initiate a recruitment action in the new location. I.e, OAG can be decentralised in functional groups”.
This extract from the email is referred to in the statement of the applicant (Exhibit B).
The respondent in its statement of facts, issues and contentions contends that the meeting on 19 July 2013 amounts to reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.
I do not consider the meeting of 19 July 2013 where the applicant was advised that there was a decision to relocate his position from Brisbane to Canberra as constituting reasonable administrative action “in respect of the… employment” of the applicant under s 5A of the Act. While the matters that are specified in s 5A(2) of the Act are certainly expressed to be not exhaustive, its application should only “be specific to the employee’s work or job so that the exclusion can operate harmoniously with the preceding portion of s 5A(1) rather than eviscerative of it”: see Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 per Rares and Tracey JJ at [69]. Thus, as noted by Gray J at [33], “matters of general administration, management and the implementation of policy are excluded [from the definition of reasonable administrative action], even if they affect the employment of employees”. This view has subsequently been endorsed several times in the Federal Court of Australia, notably by Bromberg J in Peters v Comcare [2013] FCA 808 at [34], Tracey J in Peters v Comcare [2013] FCA 1361, and Cowdroy J in National Australia Bank Ltd v KRDV (2012) FCR 436.
Tracey J has explained in Long v Comcare [2016] FCA 737 at [24], that “’administrative action’, within the meaning of s 5A [of the Act], must be employee-specific”. Consequently, I am not satisfied that the operational decision to relocate teams and individuals to Canberra from regional centres was a decision “in respect of the employee’s employment [emphasis added]”. Rather, I regard the decision to relocate the workplace from Brisbane to Canberra was a “matter that was in respect of, but apart from, ordinary duties or tasks of the employment or job itself”, and so not within the contemplation of s 5A of the Act: see Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 per Rares and Tracey JJ at [63].
I find that the “reasonable administrative action” exclusionary provision in s 5A(1) of the Act has therefore not been satisfied.
THE MEETING WAS NOT CONDUCTED IN A REASONABLE MANNER
Further, I find that the decision to advise the applicant at the meeting that the position has been relocated from Brisbane to Canberra was not undertaken in a reasonable manner. This is because the decision to relocate the position of the applicant to Canberra was contrary to the advice that Col Melotte had provided in her email of 19 February 2013 that the position of the applicant was not under consideration for relocation to Canberra under the “final design” of the ACAA organisational structure.
Before the meeting of 19 July 2013 no documentation was sent to the applicant to advise him that his position may be relocated. I consider that the decision to have the meeting was not taken reasonably as it occurred without any notice of the decision to relocate the position of the applicant being provided to him before the meeting.[3] There is evidence that in March 2013 there was an ACCA Unit Establishment Review Plan, but Lieut Col McCarthy has indicated that this plan did not indicate the location of the applicant’s position. Lieut Col McCarthy has stated that in or around March 2013 he had an “informal telephone conversation” with the applicant in which he advised that some positions in ACAA might be in Canberra. However, there is no suggestion that in that informal telephone conversation the applicant was told that his specific position may be relocated.
[3] Cf. National Australia Bank Ltd v KRDV (2012) 204 FCR 436 at 445-446 per Cowdroy J.
Lieut Col McCarthy in his statement remarks that it was not until the Chief of Army signed the Directive on 21 May 2013 that the decision to move the applicant’s position to Canberra became final. However, it was not until 19 July 2013 when the applicant was eventually advised at the meeting that the decision was made to relocate the position of the applicant. There is no apparent reason to justify the delay in informing the applicant of the decision. This delay in informing the applicant of the relocation decision was not undertaken in a reasonable manner because he should have been advised at the earliest available opportunity of the decision as he would have been expected to move his family to Canberra.
Therefore, even if there had been a “reasonable administrative action… in respect of the employee’s employment” (which I do not believe to have been the case) that action was not “taken in a reasonable manner”.
The respondent in its statement of facts issues and contentions does not contend that the applicant did not need to be consulted of the relocation of the position that he filled prior to the meeting on 19 July 2013.
CONCLUSION
For these reasons, I find that the employment of the applicant contributed to a significant degree to the injury sustained by the applicant. I am not satisfied that reasonable administration action contributed to his injury. Even if reasonable administration contributed to his injury, I am not satisfied that such action was taken in a reasonable manner.
I find that the major depressive disorder condition of the applicant is an injury under s 5A(1) of the Act. In reliance on the report of Dr Albrecht dated 31 January 2014 which identifies that the meeting on 19 July 2013 was the date of the first impairment of the applicant: the applicant shall be taken to have sustained an injury on 19 July 2013 for the purposes of s 7(4) of the Act.
DECISION
In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975, the reviewable decision dated 24 July 2014 is set aside and in substitution it is decided that the applicant is entitled to compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 for the claimed condition of major depressive disorder. For the purposes of s 7(4) of the Safety, Rehabilitation and Compensation Act 1988, the applicant should be taken to have sustained an injury on 19 July 2013.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott. ..................[sgd]......................................................
Associate
Dated 21/07/2016
Date(s) of hearing: 21, 22, 23, 24 March, 21 April 2016 Applicant In person – Self-represented Respondent In person Advocate for the Respondent Ben Dube
Solicitors for the Respondent Sparke Helmore
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