Yunupingu and Comcare (Compensation) [2017] AATA 622 (3 May 2017)
Division
GENERAL DIVISION
File Number
2014/5278
Re
Yuwan Yunupingu
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 3 May 2017 Place Adelaide The decision under review is set aside and in substitution for that decision it is decided that the respondent is liable to pay compensation to Mr Yunupingu pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the condition of “major depression” with a date of injury of 8 February 2014.
........... [Sgd] ..............................................
Deputy President K Bean
CATCHWORDS
WORKERS’ COMPENSATION – Major depression – Whether contributed to by employment – Whether condition arose as a result of reasonable administrative action taken in a reasonable manner – Meaning of “as a result of” – Decision under review set aside and substituted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B
CASES
Comcare v Martin [2016] HCA 43
Hart v Comcare (2005) 87 ALD 341, [2005] FCAFC 16, (2005) 145 FCR 29
Hollis and Comcare [2017] AATA 49REASONS FOR DECISION
Deputy President K Bean
3 May 2017
The applicant, Mr Yunupingu, is a remarkable person who has led an eventful life. Having overcome a great deal of disadvantage and adversity in his early life, at the age of 36 he returned to school and subsequently managed to obtain two university degrees, including Honours degrees at the University of Sydney.
Having worked in various roles in the intervening period, in May 2013 he applied for and obtained a position as a Senior Health Safety and Environment (HSE) advisor for NBN Co in the Northern Territory. While he was in that role, he was instrumental in NBN Co obtaining Federal Safety Commission (FSC) accreditation, which it did in October 2013.
Unfortunately, however, around the time accreditation was received by NBN Co, Mr Yunupingu began to have increasing difficulties in the workplace, which, in combination with other factors, caused him significant stress.
By early February 2014, he was acutely unwell and was subsequently diagnosed with major depression, which has persisted.
His employment with NBN Co was ultimately terminated by agreement on 28 November 2014.[1]
[1] Exhibit 3, Statement of Yuwan Yunupingu dated 16 August 2015, at [23].
On 19 February 2014, Mr Yunupingu lodged a claim for workers’ compensation in respect of his “mental state”.[2]
[2] Exhibit 1, T4/23.
By a determination dated 16 May 2014, a Comcare delegate disallowed this claim on the basis that his injury was suffered as a result of reasonable administrative action, taken in a reasonable manner in respect of Mr Yunupingu’s employment, within the meaning of s 5A(2) of the Safety, Rehabilitation and Compensation Act 1998 (the SRC Act).[3] The delegate concluded that Mr Yunupingu’s condition was contributed to by his employment, but that compensation liability was excluded by s 5A(2).
[3] Exhibit 1, T14/874.
Mr Yunupingu sought reconsideration of that determination and on 3 September 2014, a…
Continue reading Yunupingu and Comcare (Compensation)
Sign in free to access the full text
- AGLC
- Yunupingu and Comcare (Compensation) [2017] AATA 622
- Case
- [2017] AATA 622
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was to determine whether Mr. Yunupingu's condition of major depression was contributed to by his employment. Specifically, the court had to consider whether the condition arose as a result of reasonable administrative action taken in a reasonable manner, as provided for under the relevant legislation. This required an examination of the meaning of "as a result of" in this context and an assessment of the evidence to establish causation.
Deputy President K Bean reasoned that the extensive medical evidence, including contemporaneous notes from Mr. Yunupingu's GP and a psychologist, strongly indicated that his depression was linked to workplace stressors. These stressors included being forced to breach a safety contract, subsequent victimisation, receiving threatening emails from his director, and feeling that his employer was not accepting his Aboriginal heritage. The court found that the actions taken by his employer, particularly the threats of disciplinary action and the manner in which a safety complaint was handled, were not reasonable administrative action taken in a reasonable manner. Consequently, the court set aside the previous decision and substituted a new decision.
The court ordered that Comcare is liable to pay compensation to Mr. Yunupingu pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of his condition of major depression, with a date of injury stipulated as 8 February 2014, the date he first sought medical treatment.
Orders
Orders of the court
The decision under review is set aside and in substitution for that decision it is decided that the respondent is liable to pay compensation to Mr Yunupingu pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the condition of “major depression” with a date of injury of 8 February 2014
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.