Federal Court of Australia

Comcare v Martin [2015] FCA 4 (8 January 2015)

Background

The Applicant was employed by the Australian Broadcasting Corporation (ABC) and applied for a different internal position. Her immediate supervisor, Mr Mellett, was one of three people on the selection panel. The Applicant alleged Mr Mellett had bullied and harassed her and as a result she applied for the position to work for a different supervisor. The Applicant was unsuccessful in her transfer application and, on receiving the news, broke down. She was subsequently diagnosed with an adjustment disorder, with symptoms including mixed anxiety and depressed mood.

The Applicant alleged Mr Mellett was biased against her due to their unpleasant working relationship, which caused her to be unsuccessful in gaining the new position. She alleged Mr Mellett should have been disqualified from the selection panel or should have disclosed his "highly negative" views of her to the other panellists. Comcare alleged that, although the Applicant's condition arose out of her employment, reasonable administrative action provisions in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) applied to exclude her claim.

The Administrative Appeals Tribunal (AAT) identified that it needed to review whether the recruitment exercise was conducted in conformity with the ABC stated policy and, if not, whether the decision was undertaken in a reasonable manner. The AAT held the administrative action was not reasonable. Comcare appealed the AAT's decision.

Held

The Federal Court allowed the appeal and the matter was remitted to the AAT to be heard and determined according to law. The Court was satisfied the AAT committed an error of law for the purposes of s 44 of theAdministrative Appeals Tribunal Act, 1975  in its decision concerning the question of whether or not administrative action was taken in a reasonable manner for the purposes of s 5A(1) of the SRC Act. The Court referred to the factors identified in Keen v Workers Rehabilitation & Compensation Corporation [1998] SASC 7056 that need to be considered when determining whether administrative action is taken in a reasonable manner. It was found that the AAT had not taken all of these factors into account and instead focused on the question of whether the recruitment process was tainted by apprehended bias, in an administrative law sense, by Mr Mellett's participation on the selection panel.

Sparke Helmore Case

Dunkerley v Comcare [2015] FCA 392 (27 April 2015)

Background

The Applicant, an employee of the former Department of Education, Science and Training (DEST), had an accepted claim for compensation under the SRC Act for an adjustment disorder with anxious mood, with date of injury deemed to be 24 October 2007 (the 2007 condition).

On 4 December 2007, the Applicant was deemed fit to return to work in a different area of DEST, however, there was no role available so she remained off work until May 2008 when she was transferred from DEST to the Department of Industry, Innovation, Science, Research and Tertiary Education (DIISR). After several months in a temporary role, the Applicant began working at DIISR in a full-time APS6 position on 22 January 2009.

Around a month later, the Applicant was seen by psychiatrist, Dr George, who stated that she presented with no psychiatric diagnosis and concluded that she had a full capacity to work. Dr George's opinion would later be used by the Respondent as evidence that her earlier adjustment disorder with anxious mood had resolved by March 2009.

On 1 September 2009, the Applicant made a further claim for compensation based on a conversation she had with one of her superiors on 15 July 2009, where she claimed he said to her that she had only been shortlisted to interview for a more senior role "out of charity". Following this conversation, the Applicant claimed compensation for an "aggravation to adjustment disorder with anxious mood", that is, an aggravation of her earlier condition (the 2009 claim). This claim was denied.

AAT decision

The AAT affirmed the decision to disallow the 2009 claim. It concluded that the Applicant no longer suffered any ailment as a result of the 2007 condition and that all of her problems related to the events in 2009. The AAT decided that the 2009 claim had to fail because the supervisor's actions in speaking to the Applicant had been "reasonable administrative action" within the meaning of s 5A(2) of the SRC Act.

Held

The Federal Court dismissed the appeal and said it "was devoid of merit". The Court concluded that the Respondent and the AAT were not bound by the views expressed in the medical certificates about the events involving the supervisor in 2009.

Administrative Appeals Tribunal

McClelland and Telstra Corporations Limited [2014] AATA 719

Background

The Applicant commenced employment in January 1970 and in 1992 became a member of what was then called the Telecom Superannuation Scheme (the Scheme). The Applicant elected to make a members contribution of 6% and reduced his contribution rate to 5% on 1 July 1993. He continued with the 5% rate until the end of his employment in May 1998.

The Applicant contended that Telstra should not have reduced his entitlement to compensation for incapacity by deducting an amount for superannuation payments.

The Scheme permitted employees to make "member contributions" and provided a defined benefit to those employees. The issue before the AAT was whether the Applicant's entitlement to compensation by way of weekly incapacity payments should be reduced to take into account member contributions that the Applicant was making at the time when he stopped working for Telstra.

Held

The decision under review was affirmed. As the Applicant had elected to pay 5% contributions immediately before ceasing his membership, he was still 'required' to make contributions of 5% under Clause 2.2.1 of the trust deed.

Sparke Helmore Case

Salazar and John Holland Pty Ltd (2014) AATA 770

Background

The Applicant was employed as a Licensed Aircraft Maintenance Engineer from 2010 by the Respondent. In January 2013, the Applicant was ordered to certify an international line aircraft for service, but refused to do this as he believed he was not certified for the particular aircraft involved. After refusing to comply with this direction, the Duty Manager sent him off the premises. The Applicant claimed compensation for an acute stress reaction. The issues in dispute were whether Mr Salazar was mentally ill at the time after the incident or whether he was experiencing reasonable emotional reactions after an upsetting event, and whether any psychological injury resulted from reasonable administrative action taken in a reasonable manner.

Held

The decision under review was affirmed. The AAT held the Applicant did not suffer a condition outside the boundaries of normal mental functioning and behaviour. It was concluded the Applicant did not suffer an ailment or a disease per ss 4 and 5B of the SRC Act.

Sparke Helmore Case

Hunter and Comcare (2014) AATA 827

Background

The Applicant made a claim for compensation in May 2012 for a "psychological injury, (depression)", which he attributed to workplace relationships, further particularised as "language, behaviour, comments (inappropriate language, comments, racial remarks, characterisation)". The Applicant sought review of the decision to disallow this claim.

Held

The decision under review was affirmed. The AAT found that although the Applicant was suffering from an ailment at the time of his claim, it was not necessarily "arising in or out of the course of employment" as provided for under s 5A of the SRC Act. The AAT found the Applicant's major depression had been developing for some time. The AAT noted that even if the Applicant's major depression connected to his employment, the actions by his supervisor would have been considered reasonable administrative actions, taken in a reasonable manner, for that employment.

Sparke Helmore Case

Wing and Military Rehabilitation and Compensation Commission (2014) AATA 859

Background

The Applicant was enlisted in the RAAF from 1963 to 1969. On 8 April 2010, the Applicant lodged a claim for compensation for a lung condition he described as "bronchiectasis" that he said he sustained during his service by inhaling aviation fuels.

Held

The decision under review was affirmed. The AAT decided that the Applicant did not comply with the requirement to give notice as soon as practicable after the "accident" and that the Applicant did not meet the requirements under s 16 of the 1930 Act.

Sparke Helmore Case

Ali and Comcare (2014) AATA 918

Background

The Applicant spent a year working at the Curtin Detention Centre from February 2012 in an administrative role for the Department of Immigration and Border Protection. Most staff members working at the Centre lived in housing provided by the Department in Derby, approximately 40 kilometres from the Centre.

After the Centre staff shared a dinner to farewell a senior staff member in the town, the Applicant and some of his colleagues went to another hotel where they stayed until closing time. They then called into another work colleague's home for a short time and then started walking home. On their way home, they recognised colleagues who appeared to be under attack by a large group. The Applicant was approaching the group when he was hit from behind and fell to the ground. The Applicant was taken to hospital and suffered a fractured right collarbone, a bump to the head and a fracture to his right fibula.

The Applicant conceded that he was not on actual work duties at the time of the incident but maintained that he would not have been injured had he not been in Derby because of his work at the Detention Centre.

Held

The decision under review was affirmed. Member Perton found the Applicant did not satisfy the requirements of ss 5A and 6 of the SRC Act as the situation fell outside the description of an overall period of work.

Sparke Helmore Case

Howes and Comcare (2015) AATA 39

Background

The Applicant had an accepted claim for compensation for neck, shoulder and upper arm conditions and "erosion of teeth". She claimed that her breasts were enlarged because the medication she took for her compensable conditions caused her to gain weight and this caused further pain in her neck and shoulder. The Applicant underwent breast reduction surgery on 2 November 2009 and sought compensation for this procedure.

Held

The decision to disallow the claim for surgery was affirmed. The AAT found the Applicant may have been "directed" to have a breast reduction by some of her treating doctors, however, it was not relating to her compensable injuries and not part of her treatment plan.

Sparke Helmore Case – Stuart Marris acted in this matter

Polkinghorne and Comcare [2015] AATA 54 (30 January 2015)

Background 

The Applicant's accepted claim for compensation made on 3 September 2012 for "work-related stress and anxiety secondary to workplace harassment" was revoked and the Applicant sought review by the AAT.

The AAT had to decide whether the Applicant first began to suffer from a condition that was outside the boundaries of normal mental functioning and behaviour in May 2012 (as the Applicant contended) or if the Applicant's condition developed on or after 20 August 2012 following a conversation with a colleague (as the Respondent contends) and whether her employment contributed to her condition to a significant degree. The conversation on 20 August 2012 was covertly recorded by the Applicant.

Held

The AAT affirmed the decision under review. The AAT accepted that the Applicant had an adjustment disorder that arose on 21 August 2012 as a result of the Applicant's colleague's reaction to discovering the Applicant covertly recorded the conversation. The AAT found that the conversation, initiated by the Applicant and covertly recorded by her, was intended by the Applicant to convey to her colleague that she and others were a threat to him and "possibly to obtain some admissions from him" regarding a matter unrelated to their employment. In those circumstances, the AAT found that the conversation and its consequences were not "in the course of employment" and therefore no liability arose.

Sparke Helmore Case

Hoffman and Comcare [2015] AATA 53 (30 January 2015)

Background

The Applicant was employed as a digital systems technician at the Canberra Deep Space Communication Complex (CDSCC) between 2002 and 2012, when he resigned pending disciplinary action relating to his conduct in 2010. On 28 November 2012, the Applicant lodged a claim for compensation for a psychological condition. The Applicant sought review by the AAT of the Respondent's decision to reject the claim.

Held

The AAT affirmed the decision under review. The AAT noted that it had been conceded that the Applicant suffered an "injury" within the meaning of the SRC Act that was contributed to, to a significant degree, by his employment.The AAT concluded, however, that the Applicant's adjustment disorder arose "as a result of reasonable administrative action taken in a reasonable manner" regarding his employment and therefore was excluded from the definition of "injury" because of s 5A of the SRC Act and accordingly was not compensable.

Sparke Helmore Case

WBJM and Comcare [2015] AATA 143 (13 March 2015)

Background

The Applicant had an accepted claim for compensation under the SRC Act. As a result of this compensable condition, Comcare has bought the Applicant a Segway, described by the AAT as "a new generation of personal mobility device", under s 39(1)(e) of the SRC Act so he could return to work and move about. The Applicant wanted to insure against the risk of being sued if a third party was injured or property was damaged in the event of an accident involving the Segway. The issue before the AAT was who should pay for the cost of the insurance premiums.

Held

The AAT affirmed the decision under review that denied liability to pay for the insurance premiums. The AAT found that a Segway is an aid or appliance, under s 39(1)(e) of the SRC Act, which Comcare is authorised to compensate the Applicant in "such amount as reasonable in respect of the costs, payable to the employee, of...any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances". The AAT considered that an insurance policy is not an "'aid or appliance'...required by the employee" within the meaning of the SRC Act. The AAT concluded that the SRC Act does not make express provision for insurance costs to be covered by the Respondent under either s 16 or s 39 of the SRC Act.

Sparke Helmore Case – Ben Dube acted as Counsel in this matter

Hartas and Telstra Corporation Limited [2015] AATA 147 (13 March 2015)

Background 

The Applicant had an accepted claim for compensation under the SRC Act for discogenic lumbar back pain sustained in 2002. On 24 September 2004, the Applicant's employment with Telstra ceased.

On 15 June 2012, the Applicant was medically cleared to undertake a two-week work trial from 25 June 2012 delivering flowers for a florist. He continued in that job after the trial period. On 9 August 2012, Telstra advised the Applicant that his rehabilitation program was complete as he had returned to work for up to 15 hours per week.

The Respondent was making fortnightly compensation payments to the Applicant for incapacity under s 21 of the SRC Act. From 1 August 2013 until 26 March 2014, the Respondent reduced the amount of compensation it paid by the amount of the Applicant's actual earnings from his job with the florist during each fortnight.

On 24 March 2014, the Applicant advised the Respondent that he had been diagnosed with a hernia and had ceased work pending an operation. The Respondent made a determination, which reduced the amount of each of the Applicant's entitlements to compensation payments for the ten weeks beginning on 27 March 2014.

The issue before the AAT was whether Telstra was correct in its calculation of the Applicant's entitlement to incapacity payments for the ten weeks after he ceased work for the florist.

Held

The AAT affirmed the decision under review. The AAT concluded that Telstra was correct when it reduced the amount of compensation payable by the amount that the Applicant would have been able to earn if not for a later injury, unconnected to the compensable injury for which Telstra was liable.

Sparke Helmore Case

Westrupp and BIS Industries Ltd [2015] AATA 298 (5 May 2015)

Background 

The Applicant was employed by the Respondent since 2006. He was employed on a full-time contract basis and worked on a "two weeks on, one week off" roster. In the two weeks he was at work, the Applicant resided at the SPQ Leinster Mining Camp in Western Australia.

At about 8.15 pm on 26 March 2014, the Applicant went to a tavern at Leinster at the invitation of a friend. During the evening the Applicant had about four drinks of beer but was not intoxicated. At approximately 9 pm the Applicant spoke with a woman he had known since 2006. The Applicant went over to where the woman was sitting, where about four other people were also sitting. One of those people was Troy Jones, who was off shift but still on-call. When the Applicant was leaving the tavern, he hugged the woman goodbye and said "see you later" to the group. Mr Jones replied with a verbally aggressive response. The Applicant turned around and walked away. Mr Jones followed the Applicant and his friend out of the tavern, grabbed the Applicant by the t-shirt then by the throat and started choking him. The Applicant grabbed Mr Jones' forearms and they both fell to the ground. As a result the Applicant sustained the injury to his shoulder. The claim for compensation for a shoulder injury was denied by the Respondent.

Held

The AAT affirmed the decision under review. The AAT concluded that s 5A(b) of the SRC Act cannot be satisfied and the Applicant's injury did not arise out of, or in the course of, his employment. The AAT found that the assault, which caused the injury, was of a personal nature and there was no nexus between the employment or the performance by the Applicant of the duties or functions of his employment and the assault. The AAT concluded there was no ordinary "recess" here; the Applicant was between two ordinary discrete periods of employment.

Kennedy and Comcare [2015] AATA 334 (19 June 2015)

Background

The Applicant made a claim for compensation under the SRC Act for an adjustment disorder with depression and anxiety, which was first experienced in 2011. The Respondent refused the claims and contended its decisions ought to be affirmed on the basis that the Applicant's condition does not satisfy the definition of "injury" in the SRC Act. The Respondent also contended that the claim was defeated by operation of s 7(7) of the SRC Act because the Applicant made wilful and false representations that he did not suffer from, or had not previously suffered from, the disease the Applicant claims constitutes his injury.

Held

The AAT affirmed the decision under review. The AAT was satisfied that on each occasion identified by the Respondent, the Applicant for purposes connected with his employment or proposed employment by the Commonwealth made a wilful and false representation that he had not previously suffered from depression. The AAT concluded that the consequence is that s 7(7) of the SRC Act operates to deem the Applicant's ailment not to be an injury as defined in the Act, so that the Respondent is not liable to pay the Applicant compensation.

Lovering and Programmed Marine Pty Ltd [2015] AATA 433 (19 June 2015)

Background

The Applicant worked for the Respondent as a Ship Master/Deck Officer since 2003.

The Applicant claimed compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) for a lower back injury suffered on 8 October 2013 while he was "attending a HUET training course". The course was arranged at the Applicant's initiative and paid for by the Applicant, without the Respondent's direct knowledge. The course took place in an interval between two work swings while the Applicant was at his usual place of residence overseas. The Applicant claimed he attempted to seek the Respondent's permission. The Applicant also pointed to alleged conversations with the Respondent and workplace records he claimed indicated an inducement or encouragement to undertake the course. The issue before the AAT was whether the Applicant's injury occurred either arising out of, or in the course of, his employment.

Held

The AAT set aside the decision under review and substituted it for the decision that the Respondent was liable under s 26 of the Seafarers Rehabilitation and Compensation Act to compensate the Applicant for the injury that arose out of, or in the course of, his employment. The AAT accepted the Applicant's evidence regarding alleged conversations in the workplace. The AAT concluded that the Applicant's injury had arisen out of his employment with the Respondent because of the close relationship between the HUET training/qualification and the nature of the work carried out by the Applicant in the course of his employment. The AAT also made a finding of fact that, on the evidence before it, there had been the necessary inducement or encouragement by the employer such that the Applicant's injury satisfies the test set out in Comcare v PVYW [2013] HCA 41, with a consequence that the injury occurred in the course of the Applicant's employment.

Sparke Helmore Case