Wei and Comcare - [2010] AATA 894

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 894
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3224

GENERAL ADMINISTRATIVE DIVISION )

Re GREG WEI

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member
Date11 November 2010
PlaceCanberra

Decision The decision under review, to deny liability for ‘major depressive disorder, single episode’ under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), is set aside and in substitution the Tribunal decides that Mr Wei is entitled to be compensated for his ‘injury’.
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Professor RM Creyke, Senior Member

CATCHWORDS
COMPENSATION – claim for ‘adjustment reaction with mixed emotional features’ – consideration of the exclusionary provision that no compensation is payable if an injury is suffered as a result of ‘reasonable administrative action taken in a reasonable manner’ – employer’s decision to commence underperformance process – delay – manner of undertaking the process - decision under review set aside and substituted
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 5, 5A, 5B, 7(4)
Comcare v Mooi (2996) 69 FCR 439
Radulovic and Comcare [2010] AATA 777
Comcare v Chenhall (1992) 37 FCR 75
Gilbert and Comcare [2009] AATA 224
Repatriation Commission v Webb (1987) 13 ALD 421
Re Georges and Telstra Corporation Ltd [2009] 731
Re Reubinson and Comcare [2010] AATA 676
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR
REASONS FOR DECISION

11 November 2010 Professor RM Creyke, Senior Member
1.      Mr Greg Wei made a claim for compensation for major depressive disorder, single instance, with a deemed date of injury of 17 June 2008.
2.      Comcare accepted Mr Wei suffered from the condition and that it was significantly contributed to by his employment by the Australian Bureau of Statistics (ABS).
3.      However, liability was denied because the condition was said to be as a result of ‘reasonable administrative action taken in a reasonable manner in respect o the employee’s employment’ in the terms of section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
4.      The outcome was conveyed to Mr Wei in a decision of 15 January 2009, which was upheld on review on 8 May 2009. On 13 July 2009, Mr Wei appealed to the Tribunal.
Legislative and legal framework
5.      To be eligible for compensation, Mr Wei must establish that he is seeking compensation in accordance with the Act ‘in respect of an injury suffered by an employee [which] results in … incapacity for work, or impairment’.[1]
[1] Act, s 14.
6.      To be an ‘employee’ requires, as relevant, that the applicant be ‘a person who is employed by the Commonwealth or by a Commonwealth authority’.[2]
[2] Act, s 5(1)(a) – ‘employee’.
7.      ‘Injury’ is defined, as relevant, as a ‘disease suffered by an employee’.[3] ‘Disease’ is further defined, as relevant, as an ‘ailment suffered by an employee … that was contributed to, to a significant degree, by the…

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 Wei and Comcare

Details

AGLC: Wei and Comcare [2010] AATA 894
Case: [2010] AATA 894
Decision Date: 11 November 2010

CaseChat Overview and Summary

The applicant, Mr Wei, sought compensation from Comcare for an injury sustained in the course of his employment. Mr Wei claimed that he suffered an ‘adjustment reaction with mixed emotional features’ due to the actions of his employer. The dispute was heard by the Administrative Appeals Tribunal (AAT) and ultimately appealed to the Federal Court of Australia. The key issue before the court was whether the employer's decision to commence an underperformance process constituted reasonable administrative action taken in a reasonable manner, which would exclude Comcare's liability for compensation under section 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The court had to consider the timing and manner of the underperformance process and whether it was reasonable in all the circumstances.

The court examined the evidence and found that the employer delayed in commencing the underperformance process and did not conduct it in a reasonable manner. The employer's actions caused the applicant's injury, and therefore, Comcare was liable for compensation. The court held that the exclusionary provision in section 5A of the Act did not apply because the employer's actions were not reasonable. The court also noted that the applicant's injury was a foreseeable consequence of the employer's unreasonable actions. The court set aside the decision under review and substituted a decision that Mr Wei is entitled to be compensated for his injury.

In light of the findings, the court made orders setting aside the decision under review and substituting a decision that Mr Wei is entitled to be compensated for his injury. The court also ordered that the matter be remitted to the AAT for further consideration of the quantum of compensation to be awarded. The court's decision provides guidance on the application of the exclusionary provision in section 5A of the Act and the importance of reasonable administrative action in the workplace.

Orders

Orders of the court

The decision under review, to deny liability for ‘major depressive disorder, single episode’ under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), is set aside and in substitution the Tribunal decides that Mr Wei is entitled to be compensated for his ‘injury’.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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