Towns and Comcare [2011] AATA 92 (14 February 2011)

Last Updated: 14 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 92

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1498

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Phillip James Towns

Applicant

And

Comcare

Respondent

DECISION

Tribunal

M D Allen, Senior Member

Date 14 February 2011

Place Sydney

Decision

The decision under review is AFFIRMED.

..................[sgd]......................
M D Allen, Senior Member

CATCHWORDS

WORKERS COMPENSATION: Was injury result of reasonable administrative action. Failure to adhere to strict terms of industrial agreement does not, of itself, render administrative action unreasonable. Decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 S5A, 14.

CASES

Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105

Hart v Comcare [2005] FCAFC 16; (2003) 145 FCR 29.

REASONS FOR DECISION

14 February 2011

M D Allen, Senior Member

1. By application made 16 April 2010 the Applicant sought review of a “reviewable decision” made by the Respondent affirming a prior determination that he was not entitled to compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”).
2. There is no dispute that the Applicant suffers from a mental disease, namely Adjustment Disorder with anxious and depressed mood, and that the said disease was caused by stress he perceived in his workplace, namely the Australian Quarantine and Inspection Service (“AQIS”), (see the report of psychiatrist Dr Rees dated 24 August 2009).
3. Although the Applicant consulted Messrs Davidson and Trahaire, psychologists, as early as January 2009, no diagnosis was made by the psychologist who provided counselling to him and I find that the clinical onset of his disease was the date, namely 9 March 2009, when he first consulted his General Practitioner (“GP”) and a provisional diagnosis of Anxiety and Depression was made.
4. The Respondent, whilst not disputing the fact that the Applicant had an injury that had arisen out of his employment, maintained that he was not entitled to compensation because of the disentitling provisions of subsection 5A(1) SRC Act which reads:

“‘injury’ means:

(a)  a disease suffered by an employee; or

(b)  an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c)  an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.”

Whereas paragraph 5A(2)(f) SRC Act reads:

“For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

...

(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.”

5. In particular, the Respondent submitted that a Performance Appraisal given to the Applicant and a rearrangement of his duties at the Narrabri office of the AQIS constituted reasonable administrative action and that the removal of the Applicant’s entitlement to use an AQIS vehicle for his own use to travel to and from the Narrabri office to his residence was the removal of a benefit.
6. The Applicant argued that the actions taken by his superiors in AQIS, in particular the actions of his immediate supervisor Mr Hamilton, did not constitute Administrative Action that could be classed as “reasonable”.
7. The Applicant became a full time employee of AQIS in 2002 after having been a part-time employee and then a contractor to AQIS from 1996. He was appointed to the Narrabri office.
8. On 11 October 2006 the Applicant was involved in a motor vehicle accident whilst in the course of his duties and driving an AQIS vehicle. The Applicant did not suffer any injuries in that motor vehicle accident that required him to take time off work, but the fact of that accident became relevant at a later time when his supervisor Mr Hamilton made decisions regarding the Applicant’s use of a motor vehicle.
9. The Applicant had another motor vehicle accident on 1 April 2008 whilst driving an AQIS vehicle in the course of his duties. This motor vehicle accident was more serious, in that the Applicant was, for a short period, unconscious and he suffered a fractured pelvis. He remained off work but received workers compensation for a period of three months.
10. Whilst convalescing from his injuries sustained in the motor vehicle accident, the Applicant was residing with his mother. He was visited at his mother’s residence by Mr Hamilton and Mr Lielkajas. This visit arose during the course of an investigation by Mr Hamilton of an alleged breach of the Export Control (Plants and Plant Products) Orders 2005. During this hearing, that meeting was criticized as it was alleged that at that time the Applicant was affected by strong analgesics (namely Endone) and that it was unfair to him to be questioned whilst convalescing and on medication. I reject this submission. There is no evidence that the Applicant was incapable of giving an accurate account of what had occurred, nor did he give any evidence that he had objected to the meeting at the time.
11. On 30 June 2008 the Applicant returned to work following his motor vehicle accident and convalescence. His return to work was monitored by the Commonwealth Rehabilitation Service (“CRS”), and a workplace meeting was held with CRS on 1 July 2008.
12. Awaiting the Applicant on his return to work was an email dated 30 June 2008 from his superior, Mr Hamilton, welcoming him back to work, together with a Performance Appraisal. That Performance Appraisal rated the Applicant “unsatisfactory” and the Applicant’s evidence was that it “just burnt in my brain”.
13. The Performance Appraisal and its affect upon the Applicant must be read in the context of Mr Hamilton’s email to the Applicant. That email in its entirety read:

“Hi Phil,

Welcome back. 3 months is a long time away, so if you feel overwhelmed remember it is one step at a time for the return to work, but at least it is the time of year where more planting is occurring than harvesting and exports – so take your time in readjusting. As you will be in the office early Tuesday you will have time to note the changes and take up any concerns you have with the way Dennis may have altered procedures etc.

I have attached your performance appraisal for 07-08. There is some unsatisfactory elements concerning your performance over the last performance year and you need to read through the performance assessment and make your constructive comments for our meeting Tuesday afternoon. Please take into account Phil, my review of your performance is based on tangible evidence and not a subjective assessment. I need and want to work with you in correcting some of the problematic issues at hand and ask that you look at this in a positive and constructive manner.

Note Kim Storie will be there around 4pm.

Rgds,

Mark.”

14. The Applicant was distressed at receiving the negative Performance Appraisal. Although not directly relevant to these proceedings the Applicant forwarded copies of the above email to several industry representatives in an attempt to gather support for his position. In a covering email the Applicant wrote: “As you can see I have been moved sideway (sic) and waiting to move me on....”
15. The reference to “move sideway” was no doubt a reference to the fact that the Applicant’s duties at Narrabri had been rearranged following his motor vehicle accident and he was restricted to work in the Narrabri office, and that Mr Hamilton had taken over the direct supervision of contractors following perceived deficiencies in the Applicant’s ability to manage staff.
16. In an undated letter to Comcare which is headed “Statement re s58 Safety and Rehabilitation Act 1988” the Applicant stated inter alia:

“I feel that the serious car accident which I suffered on 1st April 2008 has been taken by my employer to somehow be my fault and has led to my vehicle being removed.

...

To have my vehicle taken away and to be assigned office duties was like a ‘kick in the stomach’ especially on top of the accident.

I feel that I have given my all to my job and have now been betrayed despite me taking on duties in excess of normal.

...

In addition I feel that the use of the contract staff has left me as the ‘office boy’ and I feel humiliated by the current situation.

I feel let down that there seems to be little attempt to discuss the changes with me and little attempt to see my side of the situation.

I find it difficult to come to terms with what I see as my unfair treatment.

...

I feel totally ripped off that everyone sees the car accident as my fault and that I have suffered a downgrade in my work status as a result.”

17. In late January 2009 the Applicant was so distressed by his work situation that he consulted Messrs Davidson and Trahaire, apparently through the auspices of AQIS employee support. On 9 March 2009 however, after carrying out field inspections over the January/February period in the absence of contractors, he was informed that a travel claim submitted by him had been denied and that all future overtime was to be carried out by contractors. As the Applicant put it, “he just could not handle it anymore” and attended upon his GP who diagnosed Anxiety and Depression and certified an absence from work.
18. As pointed out by Dr Rees in her report of 24 August 2009, the Applicant’s Adjustment Disorder relates to the stress he perceived in the workplace and, in particular, problems he was having with his manager, Mr Hamilton, together with his perception that the performance management was unfair.
19. In submissions, the Applicant’s counsel identified the Performance Appraisal as the cause of the Applicant’s illness, submitting that any reference to the Performance Appraisal involved, not only that document, but the Administrative Action that took place based upon that document.
20. In the Applicant’s case the administrative action, purportedly based on the Performance Appraisal, was: the restriction of his role to office work at Narrabri; the removal of his role in supervising contractors; and the removal of his use of a Commonwealth vehicle for transport to and from work.
21. So far as the Applicant’s use of an AQIS vehicle for non-work purposes is concerned, I regard that as the removal of a benefit.
22. The reasons given by Mr Hamilton for preventing the Applicant’s use of the motor vehicle are, to my mind, entirely reasonable. Initially there was a medical restriction upon the Applicant’s ability to drive long distances. It would appear that in November 2008 the Applicant’s orthopaedic surgeon cleared him to return to all pre-injury duties.
23. There remained however concerns regarding the Applicant’s driving ability, following his two motor vehicle accidents and Mr Hamilton wished to have him retested as to his ability to drive long distances. There was the further issue that there was no benefit to AQIS in permitting the Applicant to have access to a vehicle when his duties did not require that access.
24. As I see it, whether an employee has access to a Government vehicle out of work hours is a matter at the discretion of that employee’s superiors. There can be nothing unreasonable in curtailing that access if there is no pressing reason for the vehicle to be made available to him.
25. At no time was the use of a vehicle at Commonwealth expense part of the Applicant’s salary package. I also reject the Applicant’s submission that if use of a vehicle is to be removed from an AQIS employee there must be prior consultation with the employee.
26. An attack was made upon the alleged reasonableness of Mr Hamilton’s administrative action in rearranging the Applicant’s work duties by submitting that the Performance Appraisal and consequent action had not followed the procedure mandated by the Department of Agriculture, Fisheries and Forestry Collective Agreement 2006 – 2009.
27. Clause 70 of that document is headed “Managing Unsatisfactory Performance”. Subclause 70.3 reads:

“The following minimum standards must be met prior to formal action being taken under Clause 70.

regular feedback and discussion (on more than one occasion) between the manager and employee;

the manager has clearly specified in writing to the employee, their expectations and the standard to which the work is to be done; and

the employee has been given the opportunity to meet the manager’s reasonable expectations and standard of work required of them.”

28. Subclause 70.3 refers to “formal” action being taken, then sets out a series of steps that must be taken. Notwithstanding that the Applicant was served with a Performance Appraisal, no formal steps were taken to serve the Applicant with a Performance Improvement Plan, the initial step in a process which could lead to dismissal, transfer, or reduction in grade.
29. Subclause 70.6 of the Collective Agreement reads:

“Where a manager believes that an employee’s work performance is below the expected performance standard, despite repeated attempts to improve performance through feedback or discussion, or they have failed to complete a workplan and learning agreement, the following procedure will apply.”

I find that the steps taken by Mr Hamilton were taken in anticipation of action that might have been taken pursuant to subclause 70.6, and in accordance with clause 68 of the Collective Agreement which is headed “Performance Management”.

30. The administrative arrangements put in place by Mr Hamilton were made in circumstances where he had judged the performance of the Applicant as lacking (including a determination that he was not following his (Hamilton’s) instructions. In addition, he had reservations regarding the Applicant’s ability to drive a motor vehicle over long distances. Mr Hamilton’s reservations were clearly spelled out to the Applicant in the Performance Appraisal and he was invited to discuss matters with Mr Hamilton.
31. As to what might constitute “reasonable” administrative action in Bropho v Human Rights and Equal Opportunity Commission and Anor [2004] FCAFC 16; (2004) 135 FCR 105 at 128 French J (as he then was) said:

“There is a number of definitions of ‘reasonable’ in the Shorter Oxford English Dictionary. The relevant ones are:

3. agreeable to reason; not irrational, absurd or ridiculous.

4. not going beyond the limit assigned by reason; not extravagant or excessive; moderate.

The adverb ‘reasonably’ is defined as ‘in a reasonable manner; sufficiently, fairly’.

There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done ‘reasonably’ in one of the protected activities in paras (a), (b) and (c) of s 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgement. In this context that means a judgement independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgement required in applying the section, is whether the thing done was done ‘reasonably’, not whether it could have been done more reasonably or in a different way more acceptable to the Court. The judgement will necessarily be informed by the normative elements of ss 18C and 18D and a recognition of the two competing values that are protected by those sections.”

32. Mr Hamilton, both in cross examination and more particularly in a report dated 30 June 2008 to AQIS senior management, explained his reasons for the action he took. (See also document T99 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975). To my mind his actions were eminently reasonable in the circumstances.
33. Even if Mr Hamilton’s actions in some way did not conform to the Collective Agreement, that fact alone does not render them unreasonable for the purposes of the SRC Act.
34. Further a major factor in the Applicant’s illness was his reaction to having his access to an AQIS vehicle curtailed. As stated above, I regard that access as being a benefit in terms of paragraph 5A(2)(f) SRC Act.
35. In Hart v Comcare [2005] FCAFC 16; (2003) 145 FCR 29 the Full Court of the Federal Court held that if an injury is suffered as a result of a failure to obtain a benefit (in that case a promotion) then it is immaterial that other employment related causes may have also contributed to the claimed injury
36. Here the Applicant stressed the fact that he was deleteriously affected by the removal of his access to the AQIS vehicle for non-work purposes, (see documents T21 and T116) and it is clear this was a factor leading to his injury, namely his Adjustment Disorder. His claim must therefore be denied on this failure to retain a benefit alone.
37. For the above reasons the decision under review is AFFIRMED.
    

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed: .........[sgd]..............................

K. Lynch, Associate

Date/s of Hearing 20 and 21 January 2011

Date of Decision 14 February 2011

Counsel for the Applicant Mr D O’Sullivan

Solicitor for the Applicant Mr R Booby

Counsel for the Respondent Mr D Richards

Solicitor for the Respondent Dibbs Barker