Xirakis and Comcare

[2007] AATA 1817

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1817

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/98

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANDREW XIRAKIS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr M. Miller AO, Member

Date2 October 2007

PlaceCanberra

Decision The decision under review is set aside and in place thereof the Tribunal decides that the action taken against Mr Xirakis was not reasonable disciplinary action, and Comcare is liable to pay him compensation in relation to the claimed psychological injury.

...............signed...............................

Mr S. Webb, Presiding Member

CATCHWORDS

COMPENSATION - psychological injury - action taken against probationary employee for alleged misconduct - exclusions from the definition of 'injury' - meaning of 'disciplinary action' during probationary period of employment - action not lawful - action not procedurally fair - denial of natural justice - reasonable apprehension of bias - disciplinary action taken not reasonable - decision set aside

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 67

Public Sector Management Act 1994 (ACT) ss 9, 70, 71, 3, 179, 186, 187, 189, 191

Bromet v Oddie [2003] FCAFC 213

Hart v Comcare [2005] FCAFC 16

Comcare v Chenhall (1992) 37 FCR 75

Rose & Bloxham v Bridges (1997) 79 FCR 378

Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550

Annetts v McCann (1990) 170 CLR 596

Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438

Johnson v Johnson (2000) 201 CLR 488

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256

Stollery v Greyhound Racing Control Board (1972) 128 CLR 509

Re Macquarie University: Ex parte Ong (1989) 17 NSWLR 113

Re JRL: Ex parte CJL (1986) 161 CLR 342

REASONS FOR DECISION

2 October 2007 Mr S. Webb, Member
DR M. Miller AO, Member

1.      Andrew Xirakis is a primary school teacher.  He was accused of misconduct and action was taken against him.  He obtained medical treatment for a psychological condition and subsequently claimed compensation.  His claim was rejected.  Unhappy, he requested reconsideration.  The determination against him was affirmed.  Still unhappy, Mr Xirakis has placed the matter before the Tribunal for review.

2.      The issues in dispute have a narrow compass.  The parties tendered an agreed statement of facts at the outset of the hearing,[1] obviating the necessity to call any witnesses.  We are reasonably satisfied that the facts as agreed are open on the evidence before us.  Thus, we will proceed on the basis that those stated facts are found.  It is not necessary to set out the contents of Exhibit A here. 

[1] Exhibit A.

3.      The issue for determination is whether the psychological injury Mr Xirakis claimed is excluded as an ‘injury’ for the purposes of the Safety Rehabilitation and Compensation Act 1988 (the Act).  The parties agree that if the claimed injury did not result from ‘reasonable disciplinary action’ then Mr Xirakis is entitled to compensation for incapacity and medical…