Wayne Kevin Johns and Comcare

Case [2015] AATA 164

[2015] AATA 164

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/0008

Re

Wayne Kevin Johns

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

G. D. Friedman, Senior Member
Date 20 March 2015
Place Melbourne

The Tribunal affirms the decision under review.

..........................[Sgd].........................................

G. D. Friedman, Senior Member

CATCHWORDS

COMPENSATION – Australian Taxation Office – Law Interpretation Specialist –depressive disorder – breach of code of conduct – whether applicant entitled to compensation for incapacity – whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether aggravation of existing condition 

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A(1), 5A(2), 5B, 14(1)

CASES

Bropho v Human Rights and Equal Opportunity Commission and Another [2004] FCAFC 16

Comcare v Martinez (No. 2) [2013] FCA 439

Comcare v Mooi (1996) 69 FCR 439

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Hart v Comcare [2005] FCAFC 16

Hay v Comcare [2014] AATA 325

Radulovic and Comcare [2010] AATA 777

Smith v Comcare [2013] FCAFC 65

Tippett v Australian Postal Corporation [1998] FCA 335

REASONS FOR DECISION

G. D. Friedman, Senior Member

20 March 2015

  1. Wayne Johns joined the Australian Taxation Office (ATO) on 10 March 1982 and spent nearly 31 years as an ATO officer before his retirement on invalidity grounds on 21 February 2013.  On 2 May 2013 he completed a claim for compensation for Depression/Anxiety which he said was sustained on 11 December 2011 and was caused by Burnout at work.  On 31 October 2013 the respondent made a reviewable decision to refuse the claim on the basis that the condition of major depressive disorder, single episode had arisen from reasonable administrative action taken in a reasonable manner by the employer when Mr Johns was sent an email on 8 December 2011 about alleged discrepancies in the recording of his attendances at work.  

  2. Mr Johns has applied to the Tribunal for review of the decision.  He also claimed that his condition was aggravated by actions of the ATO in 2012.

    LEGISLATIVE BACKGROUND

  3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:

    (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.

    Section 5A of the SRC Act provides:

    5A  Definition of injury

    (1)       In this Act:

    injury means:

    (a)       a disease suffered by the 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…

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Wayne Kevin Johns and Comcare [2015] AATA 164
Case
[2015] AATA 164
Decision Date

CaseChat Overview and Summary

Wayne Kevin Johns applied for review of a decision by Comcare that he was not entitled to compensation for his psychological condition, which he claimed was caused by his employment with the Australian Taxation Office (ATO). The Tribunal considered whether Mr Johns was entitled to compensation for his incapacity and whether his condition was aggravated by actions of the ATO in 2012. The legal issues before the Tribunal were whether the psychological condition was caused by reasonable administrative action taken in a reasonable manner in respect of his employment, and if so, whether this would exclude him from receiving compensation. The Tribunal found that the email from the ATO on 8 December 2011, which informed Mr Johns of a suspected breach of the Code of Conduct and a possible investigation, constituted reasonable administrative action taken in a reasonable manner in respect of his employment. The Tribunal concluded that Mr Johns’ psychological condition was suffered as a result of this administrative action and thus did not come within the definition of injury under the Safety, Rehabilitation and Compensation Act 1988. Consequently, Mr Johns was not entitled to compensation.

The Tribunal also examined whether Mr Johns’ condition was aggravated in 2012 by factors such as ostracism from the ATO, the restructure within the ATO, and the investigation by the ATO. The Tribunal found that these factors did contribute to Mr Johns’ condition but held that the primary issue was whether the initial injury was caused by reasonable administrative action. Since the initial injury was found to be caused by such action, the Tribunal concluded that Mr Johns’ psychological condition did not qualify as an injury under the Act, and he was not entitled to compensation. The Tribunal did not need to consider the aggravation of the condition in 2012 in determining the entitlement to compensation.

Orders

Orders of the court

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Background

Background to the litigation

Mr Johns has applied to the Tribunal for review of the decision. He also claimed that his condition was aggravated by actions of the ATO in 2012.LEGISLATIVE BACKGROUND Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:(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.Section 5A of the SRC Act provides:5A Definition of injury(1) In this Act:injury means: (a) a disease suffered by the 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.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.…Section 4(1) of the SRC Act provides:…aggravation includes acceleration or recurrence. ISSUES There was no dispute that Mr Johns suffers from a psychological condition which, on the basis of the medical evidence, may be characterised as major depressive disorder, single episode, and is outside the boundaries of normal mental behaviour and functioning (Comcare v Mooi (1996) 69 FCR 439), and was contributed to, to a significant degree, by his employment with the ATO. The condition constitutes a disease for the purposes of s 5B of the SRC Act. The first issue before the Tribunal is whether the injury was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, which would prevent Mr Johns from receiving compensation in accordance with s 5A of the SRC Act as his medical condition would not come within the definition of injury. This involves consideration of whether the email of 8 December 2011 informing him of alleged discrepancies regarding his attendance and time recordings during the period 23 June 2011 to 28 October 2011 constitutes reasonable administrative action taken in a reasonable manner in respect of his employment, and, if so, whether Mr Johns’ medical condition was suffered as a result of the administrative action.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

After considering the medical and other evidence the Tribunal finds that Mr Johns’ psychological condition was first diagnosed in December 2011 and continued throughout 2012 and into early 2013. There was a temporal and causal connection between the email of 8 December 2011 and the medical condition, which was suffered as a result of the administrative action taken on 8 December 2011 advising Mr Johns of a suspected breach of the Code of Conduct and a possible investigation into the alleged breach, followed by each step of the investigation process.Conclusion The Tribunal finds that Mr Johns’ disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. The Tribunal accepts that other work-related issues described by Mr Johns as occurring in 2011 also contributed to his psychological condition. However in Hart v Comcare [2005] FCAFC 16 the Full Federal Court held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in the SRC Act, that disease is not an injury (later applied to s 5A of the SRC Act), and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. Therefore it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances. Consequently the Tribunal finds that Mr Johns’ depressive disorder does not come within the definition of injury in the SRC Act and he is not entitled to compensation.WAS THE CONDITION AGGRAVATED IN 2012 AFTER THE INITIAL INJURY? Mr Johns told the Tribunal that his psychological condition was aggravated in 2012 as a result of: ostracism from the ATO; the re-structure within the ATO with the consequent insecurity of ongoing employment; his perceived lack of value by the ATO; a breach of his privacy; and the investigation by the ATO into alleged breaches of the Code of Conduct which initially found him to have acted dishonestly. He said that these factors, which were referred to by Dr Eaton as having an impact on his mental state, made the condition worse because it lasted longer than it should have, and this prolongation constitutes an aggravation of the condition. Mr Johns said that the ostracism was perceived by him to have arisen at a number of levels within the ATO and included a lack of communication (other than formal requests for sick leave certificates etc) from Mr Roumeliotis, Ms Haly or his team members as to his welfare or to update him about the proposed re-structure within the ATO. He said that the ostracism, the re-structure and the investigation resulted in him developing self-worth issues and a perceived lack of value to the ATO, which did not appreciate his ability and was not keen for him to return to work. He said that the investigation was handled incompetently by Ms Sutherland, who was required to change her initial determination because of errors and incorrect documentation that he had identified in response to her findings that he had acted dishonestly when recording his attendances at work. He stated that the timing of the investigation was unfair because he was on sick leave when he was notified of the investigation, and no attempt had been made to seek clearance from his doctors that he was in a fit state to participate or to prepare a response.

Ratio Decidendi

Legal Principle Established

In a supplementary report dated 29 March 2012 Dr Felman said that she was unable to comment on whether Mr Johns would have been able to meet his attendance obligations in the period 23 June 2011 to 28 October 2011 as she did not see him until February 2012.ConsiderationWas the email of 8 December 2011 reasonable administrative action in respect of Mr Johns’ employment? In Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 Gray J stated at [31]:The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment. In Hay v Comcare [2014] AATA 325 the Tribunal held at [38]:I think the answer ultimately lies in the evidence of Mr McEwan (supported by Mr Robinson) as to the purpose of the meeting on 6 April 2010. I have already noted Mr McEwan said in his statement “my intention was to have an informal discussion about her apparent failure to hand over the case as directed and next steps”... I also noted Mr Robinson said in his statement that it was his “understanding that the meeting was really just Gary trying to resolve the situation.” In other words, evidence presented by Comcare confirms the meeting was not about considering any sort of action in connection with Ms Hay’s employment. That might come later, but not until Mr McEwan got to the bottom of what had occurred… I would add that I am not satisfied the meeting could be characterised as something that was done in connection with the sort of actions referred to in s 5A(2)(a)-(d). Things had not yet reached that stage. When Ms Haly became aware of alleged discrepancies in the time recording by Mr Johns during 2011 and possible breaches of the APS Code of Conduct and of the agreement with officers at the EL classification regarding the accuracy of time recording, she took action by advising Mr Johns by email on 8 December 2011 of the suspected breach and possible investigation for the purposes of s 5A(2) of the SRC Act. Mr Johns identified other ways of dealing with the matter, such as a direct or informal approach by Ms Haly or Mr Roumeliotis, which he believed would have been preferable. However, unlike the facts in Hay which involved an informal discussion, the Tribunal concludes that the action of sending the email represented an initial step in the disciplinary process. This was an appropriate response in the circumstances of the alleged discrepancies in the time recording by Mr Johns and was reasonable disciplinary action taken in respect of Mr Johns’ employment (s 5A(2)(d) of the SRC Act) or was action reasonably done in connection with a reasonable disciplinary action (s 5A(2)(e) of the SRC Act).