Zoric v Australian Postal Corporation

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FEDERAL COURT OF AUSTRALIA

Zoric v Australian Postal Corporation [2006] FCA 1349

DAVID ZORIC v AUSTRALIAN POSTAL CORPORATION
VID 756 OF 2006

NORTH J
13 OCTOBER 2006
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 756 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR. B.H. PASCOE, SENIOR MEMBER

BETWEEN:

DAVID ZORIC
Appellant

AND:

AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE:

NORTH J

DATE OF ORDER:

13 OCTOBER 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 756 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR. B.H. PASCOE, SENIOR MEMBER

BETWEEN:

DAVID ZORIC
Appellant

AND:

AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE:

NORTH J

DATE:

13 OCTOBER 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an appeal bought by Mr Zoric, the appellant, against a decision of the Administrative Appeals Tribunal made on 21 June 2005.  The tribunal affirmed six determinations made by the Australian Postal Corporation, the respondent, under the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the Act). The determinations related to claims by the appellant for compensation under the Act for an injury to the appellant’s left shoulder, plantar fasciitis and work stress.

    BACKGROUND FACTS

  2. The appellant started work for the respondent in 1984 at the Clayton South mail centre.  He was transferred to Dandenong in 1999.

  3. On 29 October 1999, the appellant suffered a left shoulder injury while lifting bags of mail and tipping them onto a belt.  The respondent accepted liability for the claim for this injury on 9 February 2000.  However, it determined on 17 September 2002, 4 October 2002, and 19 November 2002 that the appellant was able to return to full hours of work from 9-16 September 2002, 17-20 September 2002, and after 21 September 2002 respectively.  It further determined, on 29 May 2003, that it was not liable to pay compensation for the injury after 30 May 2003.  The tribunal’s reasons in affirming these four determinations were not part of the subject of this appeal, except as they related to the appellant’s claim of ostensible bias by the tribunal.

  4. In July 2002, the appellant lodged a claim for aggravation of left and right plantar fasciitis.  Liability for this claim was accepted on 2 September 2002.  On 22 July 2003, the respondent determined that the appellant had been able to work full time on restricted duties on and from 12 July 2002.  This determination was part of the subject of this appeal.

  5. The final determination which is the subject of this appeal was made on 7 November 2002 in relation to the appellant’s claim for work stress made on 23 September 2002.  The tribunal affirmed the determination that the respondent was not liable to pay compensation for work stress. 

  6. The appellant appeals against the tribunal’s decision in respect of the work stress claim and the impact…

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Details
Case
[2006] FCA 1349
Decision Date

CaseChat Overview and Summary

Zoric v Australian Postal Corporation is an appeal brought by Mr Zoric against a decision of the Administrative Appeals Tribunal (AAT) affirming six determinations made by the Australian Postal Corporation under the Safety, Rehabilitation and Compensation Act 1998 (Cth). The determinations related to claims by Mr Zoric for compensation for a left shoulder injury, plantar fasciitis and work stress. The appeal specifically focused on the tribunal’s decision regarding the work stress claim and the impact of pain from plantar fasciitis, as well as the appellant's allegation of ostensible bias by the tribunal.

The primary legal issue before the court was whether the AAT erred in its interpretation of the term "disciplinary action" in the context of the Safety, Rehabilitation and Compensation Act 1998 (Cth). The appellant argued that the actions taken by the respondent’s officers did not qualify as "disciplinary action" within the meaning of the proviso to section 4(1) of the Act. The court needed to determine if the tribunal correctly concluded that the actions taken constituted "reasonable disciplinary action."

The court found that the tribunal did not err in its interpretation of "disciplinary action." It held that the actions taken against Mr Zoric, including warning counselling sessions, constituted reasonable disciplinary action despite not resulting in specific and identifiable punishment. The court emphasised that disciplinary proceedings do not need to culminate in formal punishment to qualify as "disciplinary action." Furthermore, the court dismissed the appellant's claim of ostensible bias, finding that the tribunal's reasons for its decision did not reveal any bias against the appellant.

In conclusion, the appeal was dismissed, and the tribunal's decision was affirmed. The court found that the actions taken by the respondent were indeed reasonable disciplinary action, and there was no evidence of ostensible bias by the tribunal. Consequently, the appellant’s claims for compensation were rejected.

Orders

Orders of the court

1. The appeal is dismissed.

Background

Background to the litigation

This is an appeal bought by Mr Zoric, the appellant, against a decision of the Administrative Appeals Tribunal made on 21 June 2005. The tribunal affirmed six determinations made by the Australian Postal Corporation, the respondent, under the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the Act). The determinations related to claims by the appellant for compensation under the Act for an injury to the appellant’s left shoulder, plantar fasciitis and work stress.BACKGROUND FACTS The appellant started work for the respondent in 1984 at the Clayton South mail centre. He was transferred to Dandenong in 1999. On 29 October 1999, the appellant suffered a left shoulder injury while lifting bags of mail and tipping them onto a belt. The respondent accepted liability for the claim for this injury on 9 February 2000. However, it determined on 17 September 2002, 4 October 2002, and 19 November 2002 that the appellant was able to return to full hours of work from 9-16 September 2002, 17-20 September 2002, and after 21 September 2002 respectively. It further determined, on 29 May 2003, that it was not liable to pay compensation for the injury after 30 May 2003. The tribunal’s reasons in affirming these four determinations were not part of the subject of this appeal, except as they related to the appellant’s claim of ostensible bias by the tribunal. In July 2002, the appellant lodged a claim for aggravation of left and right plantar fasciitis. Liability for this claim was accepted on 2 September 2002. On 22 July 2003, the respondent determined that the appellant had been able to work full time on restricted duties on and from 12 July 2002. This determination was part of the subject of this appeal. The final determination which is the subject of this appeal was made on 7 November 2002 in relation to the appellant’s claim for work stress made on 23 September 2002. The tribunal affirmed the determination that the respondent was not liable to pay compensation for work stress. The appellant appeals against the tribunal’s decision in respect of the work stress claim and the impact of pain from plantar fasciitis, and alleges that the tribunal’s reasons for decision in their entirety disclose ostensible bias against the appellant.THE WORK STRESS CLAIM The evidence before the tribunal The tribunal first set out the evidence of each of the witnesses called at the hearing on this issue. In summary, the evidence was as follows. The appellant said that he had frequent problems with supervisors and managers who did not like the work restrictions placed on him following his shoulder injury. They asked him to perform work outside these restricted duties. The relevant managers and supervisors denied these allegations. The appellant disputed a complaint by Mr McShane, a production coordinator, relating to alleged excessive time taken for a toilet break. Many instances of complaints from 1984 were put to the appellant in cross-examination concerning his attitude towards work, his absence from his position, non-compliance with directions and harassment of female staff. The appellant said he was not aware of many of the complaints and maintained he had a good relationship with other staff.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NORTH J
Thus, the case of ostensible bias had not been made out.CONCLUSION For the reasons expressed, the appeal is dismissed. The parties agreed that, in this event, there would be no order for costs.

Ratio Decidendi

Legal Principle Established

Established by: NORTH J

In relation to the reasonable disciplinary action issue, the tribunal concluded as follows:30. … However, even if it could be said to be the cause, I am satisfied that such condition was a result of reasonable disciplinary action taken against the employee. The applicant relies on the dicta in Comcare v Chenhall (1992) 37 FCR 75 at 84 where it was said that “…action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition”. However, in that case the alleged psychiatric condition was said to have resulted from an interview related to possible criminal offences of an employee of the Australian Federal Police and prior to any finding or determination to undertake disciplinary action. Here the various actions which took place on 6 September 2002 were the result of several breaches of conduct by Mr Zoric. As was the view of the Tribunal in Re Rizkallah and Australian Postal Corporation (1991) 23 ALD 517 and Re Scalzo and Australian Postal Corporation (1991) 24 ALD 83, I am of the view that disciplinary proceedings do not need to result in specific and identifiable punishment to be “reasonable disciplinary action.” In this case Mr Zoric failed on several occasions to obey an instruction and was required to attend warning counselling and, subsequently, was absent from his work without reasonable excuse with a requirement for a second warning counselling. In both cases, Mr Zoric’s actions in refusing to discuss the complaints and walking out of the meeting meant that the normal processes were not able to be properly concluded. Nevertheless, the complaints against him, the requirement to attend two sessions on the one day and the results of those sessions constituted in the particular circumstances of this case “reasonable disciplinary action”. As in Scalzo (supra), I am satisfied that any psychiatric injury was brought on by Mr Zoric’s own misconduct.The reasonable disciplinary action issue – arguments on the appeal and consideration The question of law raised in the amended notice of appeal was expressed in the following terms: Insofar as the applicant’s case was based on injury arising out of or in the course of employment and/or contributed to in a material degree by employment on 6 September 2002 whether the Tribunal erred in construing the actions taken by officers of Australia Post in respect of warning counselling as “disciplinary action” within the meaning of the proviso to section 4(1) of the Act. The grounds of appeal elaborate the scope of the question as follows:The only actions alleged to be taken by employees of the Respondent that are alleged to satisfy the requirement of “disciplinary action” are two purported Warning Counsellings alleged to have occurred on 6.9.02. It is the Applicant’s contention that at the stage of each of the alleged Warning Counsellings they had not passed beyond the “investigative stage”. There was no evidence that a finding of breach of the Code of Ethics had occurred on 6.9.02.