Wonson v Comcare

Case [2020] FCAFC 76


FEDERAL COURT OF AUSTRALIA

Wonson v Comcare [2020] FCAFC 76

Appeal from: Wonson v Comcare [2019] AATA 2779
File number: NSD 1497 of 2019
Judges: KATZMANN, ANASTASSIOU AND ABRAHAM JJ
Date of judgment: 5 May 2020
Catchwords: WORKERS’ COMPENSATION — Commonwealth employees — appeal from decision of Administrative Appeals Tribunal to affirm determination by Comcare to refuse claim for compensation for injury allegedly due to bullying and harassment at work over five-year period — where claimed condition found to be adjustment disorder with depressed and anxious mood — where employee’s incapacity for work followed refusal of her request to reclassify sick leave already taken — where Administrative Appeals Tribunal found that the process of decision-making and the communication of the decision constituted reasonable administrative action taken in a reasonable manner with respect to the employee’s employment and found that the employee would not have suffered from the disorder had it not been for that action and was not therefore an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1998 (Cth) — whether notice of appeal raised questions of law — whether Tribunal erred by failing to fix earliest date disorder was diagnosable — whether Tribunal conflated incapacity with impairment — whether Tribunal failed to correctly apply Comcare v Martin (2016) 258 CLR 467 — whether Tribunal failed to comply with s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) by providing inadequate reasons for three of its findings
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

Federal Court Rules 2011 (Cth) r 33.30(2)

Safety, Rehabilitation and Compensation Act 1998 (Cth) ss 5A(1), 5B(1), 7(4), 14(1), 43(2), 44, 53

Cases cited:

Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575

Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500

Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554

Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; 253 ALR 263; 108 ALD 329

Comcare Australia v Mathieson [2004] FCA 212; 39 AAR 450; 79 ALD 518

Comcare v Davies [2008] FCA 393; 48 AAR 291; 173 IR 294

Comcare v Martin (2016) 258 CLR 467

Comcare v Mooi (1996) 69 FCR 439

Comcare v Wiggins [2019] FCA 1465

Dornan v Riordan (1990) 24 FCR 564

Drenth v Comcare [2012] FCAFC 86; 128 ALD 1

Gaffey v Comcare (2015) 239 FCR 76

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315

Hart v Comcare (2005) 145 FCR 29

Karabolovska v Comcare [2019] FCA 2153

Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343; 35 ALR 186

Lim v Comcare (2017) 250 FCR 298

Mayv Military Rehabilitation and Compensation Commission (2015) 233 FCR 397

Peters v Comcare [2013] FCA 1361; 137 ALD 375

Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448

Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 43 AAR 236; 91 ALD…

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AGLC
Wonson v Comcare [2020] FCAFC 76
Case
[2020] FCAFC 76
Decision Date

CaseChat Overview and Summary

In the case of Wonson v Comcare, Ms Wonson, a former employee of the Child Support Agency, sought compensation for injuries allegedly resulting from bullying and harassment at work. The Administrative Appeals Tribunal (AAT) had previously affirmed a decision by Comcare to reject Ms Wonson's claim. The Federal Court was asked to review the AAT's decision, focusing on whether the AAT correctly interpreted the legal criteria for workplace injuries under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The primary issues before the court were whether the AAT erred in its legal reasoning, failed to identify the earliest date Ms Wonson's condition was diagnosable, conflated incapacity with impairment, or did not properly apply the principles set out in Comcare v Martin (2016) 258 CLR 467. Additionally, the court considered whether the AAT complied with s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) by providing adequate reasons for its findings.

The court found that the AAT had erred in its reasoning, particularly regarding the adequacy of reasons provided for one of its findings. Specifically, the AAT failed to sufficiently justify its conclusion that Ms Wonson would not have suffered from her condition had it not been for the Department's refusal to reclassify her leave. The court held that this error warranted the setting aside of the AAT's decision and the remittal of the case back to the AAT for reconsideration. The court dismissed other grounds of appeal, finding no jurisdictional or other significant errors in the AAT's decision.

The court ordered that the appeal be allowed in part, the AAT's decision be set aside, and the matter be remitted to the AAT for redetermination. The court also outlined a procedure for the parties to agree on costs or, failing that, to submit written arguments on the issue for determination by the court. These orders ensure that the AAT can properly reconsider Ms Wonson's claim in light of the court's findings.

Orders

Orders of the court

1. The objection to the competency of the appeal be dismissed.

2. The appeal be allowed in part.

3. The decision of the Tribunal be set aside.

4. The application for review be remitted to the Administrative Appeals Tribunal to hear and determine according to law the question whether the applicant would not have suffered an adjustment disorder had it not been for her employer’s refusal to agree to her request to reclassify her leave in September 2015 and any further questions that may arise from the redetermination.

5. The parties confer on the appropriate costs order.

6. In the event that the parties are unable to agree:

(a) within 14 days of these orders, the applicant file and serve submissions on costs, not exceeding five (5) pages;

(b) the respondent file and serve submissions in response within 14 days thereafter, not exceeding five (5) pages;

(c) the applicant file and serve submissions in reply within 7 days thereafter, not exceeding three (3) pages; and

(d) the question of costs be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The scope of “reasonable administrative action” for the purposes of s 5A(1) is defined in s 5A(2) to include the following matters:(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.Background facts Ms Wonson began working as a case officer in the Child Support Agency in October 2004. After a meeting in November 2010 with Mark Cartledge, the manager of the Wollongong office of the Agency, she experienced difficulties at work which led to her making a complaint of “bullying and harassment” to the People Advisory Centre within the Department in January 2012. In mid-July 2012 she was absent from work for two days. A general practitioner, Dr Jayanthi Rao, certified that her absence was “due to work-related stress”. During the following three years a number of incidents took place at work which Ms Wonson believes caused her to become depressed. In September 2014 Dr N Rao diagnosed her with depression. From 14 to 17 September 2015 Ms Wonson was absent from work. She informed her Acting Team Leader, Elissa Fourtounas, that her absence was due to pain associated with fibromyalgia. Ms Fourtounas classified her leave as “personal leave with evidence”. The Tribunal noted that “personal leave” is also known as “sick leave”. When Ms Wonson returned to work on 18 September 2015 she discovered that her pay had been “docked by 2 to 3 hours”. When she asked Ms Fourtounas why, she was told that she had no sick leave available. Ms Wonson said that she asked if her leave could be “put as flex taken rec leave or out of [her] long service leave”. Ms Fourtounas’s evidence, upon which she was not cross-examined, was that Ms Wonson had asked that her leave be reclassified as annual leave. Nothing turns on the difference in the evidence, however. Ms Fourtounas informed Ms Wonson that before she made a decision she would need to speak to Jodie Bonney from Human Resources. After consulting with Ms Bonney, Ms Fourtounas decided not to change the classification. Her reasons, which the Tribunal accepted, were as follows. As Ms Wonson had reported that she was sick, personal (sick) leave was the appropriate classification. She was aware that Ms Wonson was often absent from work as a result of her fibromyalgia. She was concerned to support Ms Wonson to manage the effects of that condition and considered that it was in Ms Wonson’s interests that she maintain her other leave credits to allow her a sufficient opportunity for rest and recreation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For all these reasons we uphold Ms Wonson’s complaint that the Tribunal erred in law by failing to give adequate reasons for its finding at [137] that she would not have suffered from the ailment she did had it not been for the Department’s refusal to reclassify her leave, but not otherwise.Conclusion Questions 2, 3, and 4 should be answered in the negative and the corresponding grounds of appeal are not made out. Question 5 should be answered in the affirmative with respect only to the finding in [137] of the Tribunal’s reasons that Ms Wonson would not have suffered from her ailment had it not been for the Department’s refusal to reclassify her sick leave. The reasons given for this finding were insufficient to discharge the Tribunal’s duty under s 43(2) of the AAT Act. Ground 5 of the appeal is upheld to this extent. It is unnecessary to answer question 1 and decide the corresponding ground of appeal because the error was an error of law and it is unnecessary for Ms Wonson to establish that the error was also jurisdictional. It follows that the appeal should be allowed in part.Orders The next question is what other orders should be made. Subsection 44(4) provides that the Court may make such order as it thinks appropriate by reason of its decision. That may include an order affirming or setting aside the Tribunal’s decision and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal in accordance with the directions of the Court (s 44(5)). Subsection 44(6) provides that, if an order is made remitting the case to be heard and decided again, the Tribunal need not be constituted for the hearing by the same person or persons who made the original decision and, regardless of whether it is, the Tribunal may have regard to any record of the proceeding before the appeal, including a record of evidence taken in the proceeding, as long as doing so is not inconsistent with the directions of the Court. In CASA v Central Aviation, where the sole basis upon which the appeal was allowed was the inadequacy of its reasons, Perram J set aside the Tribunal’s statement of reasons and ordered that the Tribunal, as originally constituted, provide reasons in accordance with s 43(2). His Honour was of the view that the inadequacy of the reasons could be addressed by s 43AA, which enables the Tribunal to direct the Registrar to alter the text of the decision or the written statement of reasons for the decision if it is satisfied that there is an obvious error in it. CASA appealed, amongst other things, against his Honour’s finding that the Tribunal had not complied with its obligation under s 43(2) to provide adequate reasons and against the remittal order. Only the appeal against the remittal order succeeded and his Honour’s order was set aside: Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554 (Bennett, Flick and McKerracher JJ). The Full Court at [57]–[62] held that s 43AA does not confer the power to rectify the deficiencies in the reasons his Honour identified.

Ratio Decidendi

Legal Principle Established

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