COMPENSATION - employment by Australian Tax Office - aggravation of major depressive disorder - whether injury occurred as a result of reasonable administrative action - failure to obtain a benefit - failure to obtain transfer - whether applicant entitled to compensation for incapacity

Safety, Rehabilitation and Compensation Act 1988 ss 5A(1), 5A(2), 5B, 14(1)

Comcare v Mooi (1996) 69 FCR 439

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

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

G. D. Friedman, Senior Member, and Dr K.A. Breen AM, Member

1. Krystyna Jablonka joined the Australian Taxation Office (ATO) in 2000 and worked mainly in the compliance area. On 15 December 2009 she lodged a claim for compensation for anxiety and depression which she said was sustained after a meeting with her Director, Mr J Seneviratne on 10 July 2009 to discuss issues concerning her employment including a re-structure within the ATO and a change in her duties (the Director meeting). Her claim was refused by the respondent, which found that her condition of aggravation of major depressive disorder, recurrent episode had arisen from reasonable administrative action by the employer comprising a decision by the ATO to decline to pay her retrospectively for duties she claimed to have performed at a level higher than her actual classification of APS4 (the backdated remuneration decision); and a failure by Ms Jablonka to obtain a transfer within the ATO (the transfer decision). Ms Jablonka has sought review by the Tribunal.

1. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

5A Definition of injury

(1) In this Act:

injury means:

(a) a disease suffered by the 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.

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

(a) a reasonable appraisal of the employee's performance;

(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;

(c) a reasonable suspension action in respect of the employee's employment;

(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;

(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

(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.

5B Definition of disease

(1) In this Act:

disease means:

(a) an ailment suffered by an employee; or

(b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

1. There was no dispute that Ms Jablonka suffers from a psychological condition which, on the basis of the medical evidence, may be characterised as aggravation of major depressive disorder, recurrent episode, and is outside the boundaries of normal mental behaviour and functioning (Comcare v Mooi (1996) 69 FCR 439), and was contributed to, to a significant degree, by her employment with the ATO. The condition constitutes a disease for the purposes of s 5B of the SRC Act. The respondent accepted that a re-structure within the ATO, which led to the change in Ms Jablonka's duties, and her interaction with her Team Leader and her Director, did not constitute administrative action ...in respect of her employment for the purposes of s 5A(1) of the SRC Act (Commonwealth Bank of Australia v Reeve [2012] FCAFC 21).
2. The issue before the Tribunal is whether the injury was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment, which would prevent her from receiving compensation in accordance with s 5A of the SRC Act as her medical condition would not come within the definition of injury. This involves consideration of the following:
   • Does either the backdated remuneration decision or the transfer decision constitute reasonable administrative action taken in a reasonable manner in respect of Ms Jablonka's employment? If so:
     • Was Ms Jablonka's medical condition suffered as a result of the administrative action so as to prevent her from receiving compensation?

DOES THE BACKDATED REMUNERATION DECISION CONSTITUTE REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER IN RESPECT OF MS JABLONKA'S EMPLOYMENT?

1. Ms Jablonka provided a large number of documents to the Tribunal. In these documents and in oral evidence she told the Tribunal that the backdated remuneration decision does not constitute reasonable administrative action taken in a reasonable manner in respect of her employment. By way of background she said that she was born in Poland and completed tertiary education in economics and international trade. She and her family migrated to Australia in 1992 and in January 2000 she commenced with the ATO at the Dandenong Office as a Goods and Services Tax (GST) Field Compliance Officer at the APS4 level involving advisory work in complex tax law. She said that there was no distinction between the duties of Compliance Officers at the APS4, APS5 and APS6 levels, and that she performed the part-time role of SBS Radio Tax Presenter at APS6 level for several months in 2000.
2. Ms Jablonka stated that in July 2000 her duties were changed to GST auditing, and in 2003 she was transferred to the highly specialised Cash Economy (CE) section within the GST Business Line. She said that in most cases she undertook auditing work above the APS4 level but there was no system in place for recognition or advancement to APS5 or APS6 levels. She explained that in 2004 she suffered a number of highly distressing incidents at work, which resulted in a compensation claim. Around this time she was diagnosed with a serious illness and did not have an opportunity to address her employment issues, and this situation impacted on her ability to deal adequately with her rehabilitation. In 2006 she had recovered sufficiently to return to normal duties.
3. Ms Jablonka noted that in 2007 a re-structure of the GST/CE Business Line retained the lack of distinction between the work performed by officers at the APS4, APS5 and APS6 levels. However she claimed that a lack of consultation and information by the ATO prevented her from taking appropriate action to seek redress of the situation in July 2008 when her duties were permanently and significantly downgraded, although her classification as an officer at the APS4 level did not change. She also complained to her team leader about the lack of fairness in the allocation of Higher Duties Allowance and discriminatory practices within the ATO.
4. Ms Jablonka stated that in 2008 she lodged a claim for compensation for stress as a result of incidents in 2004, 2007 and 2008. She said that she tried unsuccessfully to move to a more appropriate area within the ATO, and in October 2008 she obtained a transfer from Dandenong to the Box Hill Office, where she commenced with the CE compliance team. She emphasised that her team leader (Mr M Brombara) initially was supportive but he did not explain that as a result of the re-structure of the Business Line and/or a capability improvement program she was subject to a permanent change in her working conditions, which Ms Jablonka effectively saw as a demotion. This led to high levels of stress and anxiety.
5. Ms Jablonka stated that in early 2009 her team members were advised that they would undertake less complex, more voluminous work that was originally performed at the APS2 and APS3 level. She said that she was unhappy with this because of the effect of long periods of concentration on her emotional state. In June 2009 she became aware of a proposal for GST Line staff to apply for a re-classification of positions if their duties in the previous 12 months warranted a higher level. She became suspicious because of a lack of consultation, and learned later that the duties of APS4 officers had been changed permanently on 1 July 2008 and they no longer performed full audits, and that those who had been granted Higher Duties Allowance because of preferential treatment had received a significant advantage in the new arrangements.
6. As a result of the changes, Ms Jablonka said that she again felt hurt and had become the subject of the same unfair and discriminatory practices that had forced her to seek a transfer from the Dandenong Office. Mr Brombara would not allow her to perform full CE audits, and she felt that he did not offer any constructive advice. She asked him to arrange a meeting with the CE Director (Mr J Seneviratne), which took place on 10 July 2009 after Mr Seneviratne had addressed the entire CE team.

1. In respect of the Director meeting Ms Jablonka said that she explained her situation to Mr Seneviratne and asked to be returned to duties that involved full CE audits and to be compensated for the work that she had performed previously at a higher level, but he refused. She said that she raised the possibility of Court action to force the issue and he replied by asking whether she had a lawyer. She said that he warned her that the ATO would not promote or transfer her if she took legal action, which she later interpreted as victimisation. Ms Jablonka stated that after the meeting she thanked Mr Brombara for arranging the meeting and told him that the meeting was good. She stated that on 14 July 2009 she and Mr Brombara discussed the Director meeting in more detail and she asked him about the possible assignment of duties that had been raised by Mr Seneviratne, but that Mr Brombara denied any knowledge of such a proposal and did not believe Ms Jablonka's claim of victimisation by Mr Seneviratne. Ms Jablonka told the Tribunal that she was distressed by the situation involving the threat by the Director and obtained a referral from her general practitioner to a psychiatrist. She returned to work but felt distressed and victimised by Mr Brombara. On 13 August 2009 she began to feel mentally and physically unwell, and believed there was a plot to terminate her employment. She has not returned to work since then, and was retired from the APS on medical grounds in 2011.
2. Ms Jablonka said that the backdated remuneration decision was not reasonable administrative action because at no time either directly or indirectly did she ask her employer for payment in relation to duties performed at a level higher than her official classification, although she maintained that payment for higher duties was a basic employment right and not a benefit under her contract of employment.
3. Under cross-examination Ms Jablonka agreed that by July 2009 she felt undervalued by the ATO. She also agreed that she had formed the belief that she had not been paid correctly for work performed above the APS4 level in the past, although she stated that when she told her general practitioner that the ATO owed her $60,000 in unpaid higher duties allowance she had exaggerated the claimed debt. Ms Jablonka said that she had been facing financial difficulty as a result of medical expenses and the loss of employment by her husband.
4. Ms Jablonka agreed that during the Director meeting and in later emails she referred to the question of underpayment of previously performed duties. She disagreed that Mr Brombara had offered any help in resolving her work issues, and said that he was unsympathetic to her concerns, so she had no option but to seek redress through other avenues. She acknowledged that in August 2009 when she ceased working she had been seeking information about Higher Duties Allowance and was considering legal action.
5. Mr Seneviratne told the Tribunal in a written statement dated 11 March 2011 that on 10 July 2009 he addressed the CE staff at Box Hill and outlined operational plans for the Division, which involved expectations that staff would undertake a mix of work that included new products in the CE plan. Mr Seneviratne confirmed that Mr Brombara asked him to meet Ms Jablonka and that the Director meeting lasted 20 to 30 minutes. He said that among other matters Ms Jablonka referred to work that she claimed to have undertaken previously at a level beyond APS4 and wished to be compensated for this.
6. Mr Seneviratne stated that he told her that he could not assist her with the issue about compensation for previous work, but enquired whether she had sought advice from other areas of the ATO or legal advice about her concerns. He stated that he has read Ms Jablonka's written account of the meeting. He denied that his remarks at the meeting could be construed as threatening or that he made any statement that might reasonably cause her to feel victimised. He said that at the conclusion of the meeting she thanked him for his time and advice, and that at no time during the meeting did she display any distress, disagreement or anxiety.
7. Under cross-examination Mr Seneviratne reiterated that he believed that the meeting had been amicable and that he had sought to assist Ms Jablonka by suggesting avenues within the ATO through which she could pursue the matters that she had raised, although there was no mechanism for compensation for work she had performed at a higher level.
8. In a written statement dated 8 April 2011 Mr Brombara told the Tribunal that he has been a team leader within the CE area of the ATO since 2007 and that Ms Jablonka had joined his team in October 2008. He stated that Ms Jablonka had mentioned that staff at the APS4 level were expected to work on higher volume but less complex cases, but she preferred the more complex matters, although he told her that the changes in the CE work arrangements arose from a strategic decision by management. Mr Brombara stated that Ms Jablonka approached him on a number of occasions and indicated that she had worked on complex audits in the past and believed that she should receive remuneration at the APS6 level backdated for earlier years. He said that he explained to her that he could not help because he had no idea of the work that she had performed six or seven years earlier as she had only joined the CE team a short time earlier. He said that he suggested avenues she might follow if she wished to pursue this and other issues.
9. In respect of the Director meeting, Mr Brombara stated that Ms Jablonka accepted his offer to arrange the meeting with Mr Seneviratne after he addressed staff on 10 July 2009. He said that afterwards Ms Jablonka told him the meeting was amicable and that Mr Seneviratne had confirmed the advice that he had given to her earlier. He stated that after the meeting Mr Seneviratne also confirmed to him that the meeting had taken place satisfactorily and that she had been given advice as to further action she might consider.
10. Mr Brombara stated that on 15 July 2009 Ms Jablonka approached him and told him that she now felt that Mr Seneviratne had threatened her indirectly with disciplinary action and that her career could be jeopardised if she pursued the issues raised, including the request for backdated remuneration. He said he informed Mr Seneviratne, who denied making threats of any kind. He stated that Ms Jablonka then sought sick leave because of stress arising from the Director meeting.
11. In assessing the material provided by Ms Jablonka and the respondent, the Tribunal concludes that Ms Jablonka's evidence is consistent with the evidence by Mr Brombara and Mr Seneviratne that from early 2009 she had requested from Mr Brombara and from Mr Seneviratne at the Director meeting retrospective payment of remuneration at a level higher than APS4 for work performed over a number of years. The Tribunal finds the action by the ATO in declining to do so constitutes anything reasonable done in connection with the employee's failure to obtain a benefit... in connection with ...her employment and is reasonable administrative action (s 5A(2)(f) of the SRC Act). The Tribunal is satisfied that there was no mechanism available within the ATO for such retrospective payments, and in all the circumstances the reasonable administrative action was taken in a reasonable manner in respect of Ms Jablonka's employment.

WAS THE MEDICAL CONDITION SUFFERED AS A RESULT OF THE ADMINISTRATIVE ACTION SO AS TO PREVENT MS JABLONKA FROM RECEIVING COMPENSATION?

1. Ms Jablonka stated that her injury was caused by harassment, threats and bullying rather than by reasonable administrative action. She said that, in particular, the Director meeting contained a threat because Mr Seneviratne warned her not to take legal action to seek retrospective payments, and the meeting contributed significantly to her medical condition and led to the cessation of employment. Under cross-examination she conceded that in an email dated 16 July 2009 to Mr Brombara informing him that she was taking two days off work because of events that followed the Director meeting, she stated:

... I feel sort of distressed after finding out that, perhaps, I have been underpaid for my work for multiplied number of years. Also it is seen to be shocking the warning given to me by Johan [Seneviratne] that trying to address this issue could result in possibly discriminative treatment by the ATO in the form of non-promotion and/or movement to desired working areas.

1. Dr Jane noted that on 17 July 2009 Ms Jablonka presented as stressed and had referred specifically to concerns arising from work issues, including a claim that she had not been paid for work she had performed at a higher level, resulting in an underpayment of $60,000. Dr Jane stated that Ms Jablonka told her that when she raised the matter with her supervisor she was informed that if she took legal action to seek backdated remuneration there could be serious repercussions. She perceived this as a threat.
2. In her report Dr Jane recorded that on 14 August 2009 Ms Jablonka complained about workplace stressors and told her that she felt frightened by the Director ...apparently telling her in July that she needed to be aware that she would have problems if she raised the issue of not getting paid adequately for past duties... When asked for her opinion on the main factors (both employment related and non-employment related) which have contributed to Ms Jablonka's claimed medical condition, Dr Jane stated that the main factor had been work-related stress. She identified several issues that have resulted in Ms Jablonka's condition of depression/anxiety, and the first mentioned was a belief by Ms Jablonka that she was not being paid for the level at which she was working, resulting in financial disadvantage.
3. Dr S Graham, consultant psychiatrist, stated in a report dated 29 January 2010 that Ms Jablonka first consulted her on 6 October 2009. She said that Ms Jablonka's depression appears to have been an exacerbation of the depressive illness which was diagnosed in 2008 and was the result of her employment with the ATO, particularly a reassignment to a position involving simpler and less complex work, which Ms Jablonka found to be a distressing and humiliating experience. Dr Graham took a history that Ms Jablonka believed that she should have been paid for the more complex work which she and others had been performing over a number of years at a rate commensurate with a higher classification. Dr Graham stated that Ms Jablonka's depressive illness deteriorated after the Director meeting which included the perceived threats.
4. In a further report dated 14 March 2011 Dr Graham stated that Ms Jablonka had told her that recent legislation entitled all employees doing the same work to receive the same rate of pay, and that the legislation was retrospective for a number of years, which would have covered the period when she was performing more complex work. Ms Jablonka had begun to believe that there had been a deliberate cover-up by the ATO to avoid paying employees retrospectively at a higher rate for work they had performed previously.
5. Dr Graham concluded that, in reviewing her earlier report, she considered that the main factor leading to Ms Jablonka ceasing work was the Director meeting in which Ms Jablonka interpreted Mr Seneviratne's remarks as a form of veiled threat if she decided to seek financial compensation through the courts for backdated remuneration. Dr Graham said that in the context of growing concerns about a cover-up by the ATO and with perceived threats by Mr Seneviratne, Ms Jablonka's feelings of fear and vulnerability increased progressively, and she developed delusional beliefs that the ATO would take covert steps to have her dismissed if she returned to work. These persecutory delusions were associated with and led to a dramatic worsening of Ms Jablonka's depression, resulting in her inability to continue working.
6. The Tribunal takes into account Ms Jablonka's evidence and the evidence from Mr Seneviratne, Mr Brombara, and the medical evidence. On Ms Jablonka's own evidence the meeting with the Director on 10 July 2009 was a major contributing factor to the aggravation of the condition. This is supported by the medical evidence, and one of the points of discussion with the Director at the meeting was the failure by the ATO to pay Ms Jablonka for work that she believed she had performed at a higher level on previous occasions. The Tribunal also takes into account Ms Jablonka's email dated 16 July 2009 in which she outlined her distress following the Director meeting as a consequence of the failure by Mr Seneviratne to agree to pay her for work performed at a higher level. The evidence from Dr Jane and Dr Graham supports the view that the decision by the ATO to decline Ms Jablonka's request for backdated remuneration was a major factor in the aggravation of her psychological condition.
7. For these reasons the Tribunal finds that Ms Jablonka's medical condition was suffered as a result of the administrative action arising from the backdated remuneration decision, and Ms Jablonka's condition does not come within the definition of injury in the SRC Act.

DOES THE TRANSFER DECISION CONSTITUTE REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER IN RESPECT OF MS JABLONKA'S EMPLOYMENT?

1. In Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 the Federal Court of Australia held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in the SRC Act, that disease is not an injury (later applied to s 5A of the SRC Act), and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. Therefore it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances.
2. In view of the Tribunal's findings regarding reasonable administrative action in respect of the backdated remuneration decision, there is no need to consider whether the administrative action taken in respect of the transfer decision satisfies the criteria for excluding the condition from the definition of injury. Consequently Ms Jablonka is not entitled to compensation.

1. The Tribunal affirms the decision under review.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of G. D. Friedman, Senior Member, and Dr K.A. Breen AM, Member

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