Favas v Comcare

RELEVANT LEGISLATION 12 Section 14(1) of the SRC Act provides that Comcare is liable to pay compensation in respect of an "injury" suffered by an employee if the injury results in death, incapacity for work or impairment. 13 Section 5A of the SRC Act contains the definition of "injury". Relevantly, it provides: Definition of injury (1) In this Act: 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. (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) … (d) … (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. 14 Section 5B of the SRC Act contains the definition of "disease": 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. (2) … (3) In this Act: significant degree means a degree that is substantially more than material 15 "Ailment" is defined in s 4 of the SRC Act as follows: ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). 16 Although the Tribunal, in its reasons, did not refer to s 7 of the SRC Act, Dr Favas complained that it had erred in fixing his date of injury as having been sustained on 21 March 2014. This finding, he contended, had been made under s 7(4) of the SRC Act. That subsection reads: 7 Provisions relating to diseases … (4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when: (a) the employee first sought medical treatment for the disease, or aggravation; or (b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee; whichever happens first. …

THE TRIBUNAL'S DECISION 17 As a result of concessions made by Comcare the issues before the Tribunal were relatively narrowly confined. As the Tribunal recorded in its reasons (at [7]-[8]): 7. Comcare conceded, and the Tribunal accepts, that Dr Favas suffers from a psychological condition. Dr Anthony Sheehan, consultant psychiatrist, diagnosed major depressive disorder single episode. Dr Colin McIvor, consultant psychiatrist, diagnosed major depressive disorder with prominent anxiety. On the basis of that medical evidence, the Tribunal finds that Dr Favas suffers from major depressive disorder (the medical condition) that 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 Dr Favas' employment with the JFLA. The medical condition constitutes a disease for the purposes of s 5A and s 5B of the SRC Act. 8. The issues before the Tribunal are: • When did Dr Favas suffer the disease? • Did Dr Favas suffer an injury? This requires consideration of whether the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. Although there were a number of events that affected the medical condition, the parties agreed at the hearing, and the Tribunal accepts, that the only administrative action to which the exclusion provisions of s 5A of the SRC Act may apply is the 21 March 2014 meeting. 18 In answering those questions the Tribunal found (at [23]) that Dr Favas had suffered a disease on 21 March 2014 following his attendance at the meeting with Colonel Harnwell on that day. It further found (at [26]) that Dr Favas would not have suffered the medical condition about which he complained had the 21 March 2014 meeting not taken place. 19 The Tribunal went on to find that Dr Favas did not suffer an injury because "the reasonable administrative action taken in a reasonable manner" exception to the definition of injury in s 5A applied. 20 In dealing with this latter issue the Tribunal was required to resolve conflicting accounts about the purpose of the meeting and of what transpired at it. 21 Having regard to the exchanges between Dr Favas and Colonel Harnwell in the lead-up to the meeting the Tribunal concluded that the meeting constituted reasonable administrative action within the meaning of s 5A(2)(b) and (e) of the SRC Act. It found that: 29. The Tribunal accepts Colonel Harnwell's evidence that he conducted regular meetings in Melbourne with senior staff to discuss relevant issues, and that on 17 March 2014 he arranged the 21 March 2014 meeting with Dr Favas to discuss Dr Favas' performance agreement. In his email of 17 March 2014 Colonel Harnwell also referred to the possibility of Dr Favas considering alternate employment options in the event of a transfer of the Chief Engineer position to a military-designated position. In reply, Dr Favas agreed to the meeting and on 18 March 2014 sent his performance agreement to Colonel Harnwell. 30. In the circumstances, the Tribunal finds that the meeting was arranged for the purpose outlined by Colonel Harnwell and that the proposed discussion of Dr Favas' performance agreement was appropriate. As a regular informal discussion and meeting there was nothing unusual about its arrangements or location in Dr Favas' office, and adequate notice had been given. For these reasons the Tribunal finds that the 21 March 2014 meeting constitutes reasonable administrative action as defined in s 5A(2)(b) and (e) of the SRC Act. 22 The Tribunal then turned its attention to the question of whether the administrative action had been taken in a reasonable manner. In dealing with this question the Tribunal was required to consider conflicting evidence given by Dr Favas and Colonel Harnwell. 23 Dr Favas told the Tribunal (at [32]) that Colonel Harnwell: … went off at me, raising his voice, expressing resentment at my failure to take up his suggestion to work elsewhere in the DMO. His physical posture along with his expressed resentment clearly demonstrated a hostile attitude to me. There was no rational discussion with him. He told me that I would not be returning to my substantive position as Chief Engineer, JFLA. He then threatened to put me on a performance improvement plan if I didn't vacate my position. There had been no discussion of my performance. He was threatening me with the performance improvement plan to further intimidate me into giving up my substantive position. He had no basis for demanding that I give up my job, he was merely bullying me. 24 Under cross-examination Dr Favas was confronted with a document which he had sent to Comcare about a month after lodging his claim (at [36]). In that document he had stated: On 21 March 2014 the Colonel and I undertook a performance exchange. Despite completing the Key Expected Results ahead of schedule, the Colonel responded with antagonism and resentment. It felt like the Colonel had deliberately set unreasonable workloads; had deliberately withheld information that was vital for effective work performance … with the expectation of failure to meet my deliverables so to give him a reason to remove me from this organisation. The Colonel advised that I would not be returning back to JFLA Chief Engineering role ... 25 Despite the contents of this document Dr Favas maintained that there had been no performance exchange in the course of the meeting on 21 March 2014. He said that his statement to the contrary was a mistake. 26 Colonel Harnwell's account differed significantly from that of Dr Favas. He gave evidence (at [39]) that: … soon after we commenced talking, Dr Favas asked whether I would be appointing him back to the role of [Chief Engineer]. I responded that he had not demonstrated the necessary development or attributes required for the role and I would not be recommending his re-appointment. I indicated that I would support his continued tenure as Director, HAZCHEM or to another position at level in Melbourne. Dr Favas became very upset and asked me to leave his office, which I did. 27 The Tribunal considered the evidence relating to interactions between Dr Favas and Colonel Harnwell during 2013 and the early part of 2014. It found that: 43. … Colonel Harnwell went to considerable lengths to support Dr Favas by offering to maintain him in the position of Director HAZCHEM and suggesting other roles that Dr Favas might be suited to, even offering to make up the difference in salary if Dr Favas accepted an EL1 position rather than his substantive classification of EL2. He had encouraged Dr Favas to develop a positive work/life balance and the two exchanged warm Christmas and New Year greetings. Colonel Harnwell made known to Dr Favas his personal preference for the position of Chief Engineer to be a military-designated position, and had informed Dr Favas of the purpose of the meeting as a discussion of performance and other matters, rather than as a formal counselling session. 44. For these reasons, the Tribunal does not have any persuasive evidence that in conducting the 21 March 2014 meeting, Colonel Harnwell was persecuting Dr Favas or was seeking to force him to resign. In view of their past interaction and correspondence, there was no evidence of rancour between them, and no plausible reason to suggest that that Colonel Harnwell might be hostile towards Dr Favas, threaten or intimidate him, or make a point of getting rid of him before Colonel Harnwell's retirement from the Army. The Tribunal prefers the version of events as described by Colonel Harnwell: that Dr Favas asked about returning to his substantive position of Chief Engineer, and when Colonel Harnwell indicated that he would not be recommending this course of action, Dr Favas became upset and asked Colonel Harnwell to leave, which he did. 45. This version of events is supported by Dr Favas' email to Colonel Harnwell at 2.06pm on 21 March 2014 in which Dr Favas stated: I'm not well. I'm off to see a doctor. Kind regards … which does not give an impression that Dr Favas felt that he had been the victim of hostile, aggressive or threatening behaviour from Colonel Harnwell less than two hours beforehand. The Tribunal takes into account that Colonel Harnwell replied shortly after receiving the email, showing concern for Dr Favas' health and welfare and offering time off. 46. The Tribunal finds that Colonel Harnwell acted appropriately in leaving the meeting when asked to do so when Dr Favas became upset, and there was no opportunity to discuss performance issues. In all the circumstances, the Tribunal finds that the reasonable administrative action was taken in a reasonable manner.

DR FAVAS'S APPEAL 28 Dr Favas's amended notice of appeal identified no relevant questions of law. Under the heading "Questions of Law", there were three major headings. They were: "Erroneous finding re date of injury"; "Tribunal decision violates law of causality"; and "Tribunal decision violates law of causality - Performance appraisal". 29 Under each heading there were references to authority, some factual findings with which Dr Favas took issue and allegations of legal error on the part of the Tribunal. 30 This part of the notice was discursive and lacked clarity. Doing the best I can I discern two related complaints by Dr Favas. The first is that the Tribunal erred in finding that Dr Favas's condition was suffered on 21 March 2014. Dr Favas asserted that this finding had been made under s 7(4) of the Act. He claimed that his disease had been sustained on 19 March 2014 when he had first sought medical treatment from his general practitioner. That gave rise to the further complaint that the reasonable administrative action exception to the definition of injury should not have been relied on because his injury predated the meeting on 21 March 2014 and, in any event, no performance review was conducted at that meeting. 31 Under the heading "Grounds relied on", similar errors were identified as those essayed under the "Questions of law" section. The alleged errors related to the finding that the disease had been suffered on 21 March 2014 and the reasonableness of the administrative action undertaken at the meeting with Colonel Harnwell on 21 March 2014. 32 Despite these infelicities the approach of the Court to appeals such as the present is guided by the Full Court's reasons in Haritos v Commissioner of Taxation (2015) 233 FCR 315 at 350; [2015] FCAFC 92 at [94] where the Court said: In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal's reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law. 33 The need to concentrate on the substance of an applicant's complaint is all the more apparent when the applicant is unrepresented before the Court.

CONSIDERATION 34 It was for the Tribunal to find, as a matter of fact, when the disease was suffered and whether it had been suffered as a result of reasonable administrative action by the Department which was reasonably taken. No error of law is made simply by a decision-maker making a wrong finding of fact: see Waterford v The Commonwealth (1987) 163 CLR 54 at 77 (Brennan J)). 35 Error only arises if a decision-maker fails to identify the relevant legal test and apply it to facts found which are supported by the evidence: cf Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410 at 415; [2010] FCAFC 94 at [13] (Dowsett and Gordon JJ). 36 There was an abundance of evidence before the Tribunal which supported its finding that the disease had been suffered on 21 March 2014 and that its onset was occasioned by the meeting. 37 In his compensation claim Dr Favas nominated 21 March 2014 as the date on which he first suffered the condition at work and sought medical attention relating to his depression (at [9]). He had done so following the interview with Colonel Harnwell which, he said, had led to him feeling unwell and going immediately to see his general practitioner. Dr Favas's lawyer also nominated 21 March 2014 as the relevant date in a statement made in support of his application to Comcare for internal review. There was medical evidence to support the choice of that date. The medical certificate which was relied on to grant Dr Favas leave was issued during the consultation on 21 March 2014. There was no medical evidence called relating to Dr Favas's condition on 19 March 2014. 38 The Tribunal did not avowedly make the impugned finding under s 7(4) of the SRC Act. There was no need for it to have done so. Once it had made a factual finding for the purposes of paragraphs (a) and (b) of the subsection the deeming provision in the prefatory words operated. 39 I am prepared to assume, in Dr Favas's favour, that the Tribunal's finding that he suffered his relevant disease on 21 March 2014 was made under s 7(4). 40 The Tribunal made this finding before determining whether Comcare had incurred liability to pay compensation to Dr Favas under s 14. 41 There may be cases in which a premature determination, made under s 7(4), may deflect the Tribunal from its statutory task and give rise to error: see Smith v Comcare (2013) 212 FCR 335; [2013] FCAFC 65. This is not such a case. Ironically, it might have become one had Dr Favas urged the Tribunal to find that he had suffered the disease on 16 October 2013 or 19 March 2014 (as he did in this Court), because that finding may have foreclosed the answer to the antecedent question as to whether liability to pay compensation to him arose under s 14: cf Peters v Comcare (2006) 137 ALD 375 at 379; [2006] FCA 1361 at [24] (Tracey J). The answer to the antecedent question, in turn, depended upon a finding as to whether Dr Favas's diagnosed disease was suffered as a result of reasonable administrative action taken in a reasonable manner on 21 March 2014. 42 The Tribunal quickly turned to the antecedent question about whether the exclusionary qualification to the definition of "injury" in s 5A(1) was engaged. 43 It directed itself in accordance with the High Court's decision in Comcare v Martin (2016) 258 CLR 467 at 480; [2016] HCA 43 at [47] (French CJ, Bell, Gageler, Keane and Nettle JJ) and the Full Court of this Court in Lim v Comcare (2017) 250 FCR 298 at 307; [2017] FCAFC 64 at [40]-[41] (Kenny, Tracey and Bromberg JJ). These decisions emphasised the importance of establishing a causal connection between the administrative action and the suffering of the disease. The Tribunal had to be satisfied that Dr Favas "would not have suffered an ailment (or aggravation of an ailment) if the performance appraisal had not been taken": Lim at 307 [41]. 44 Having considered the medical evidence and Dr Favas's own evidence concerning the 21 March 2014 meeting and its aftermath, the Tribunal concluded that he would not have suffered the medical condition had the meeting with Colonel Harnwell not taken place on that day. 45 The next question was whether the meeting constituted reasonable administrative action. This was a question of fact to be determined on the evidence: see Drenth v Comcare (2012) 128 ALD 1 at 7; [2012] FCAFC 86 at [26] (Rares, McKerracher and Murphy JJ). 46 At [29] and [30] of its reasons the Tribunal dealt with the evidence about the circumstances in which the meeting came to be held and accepted Colonel Harnwell's evidence that it had been arranged for the purpose of discussing Dr Favas's performance agreement. 47 The Tribunal found, as it was entitled to do on the evidence, that the meeting constituted reasonable administrative action within the meaning of s 5A(2)(b) and (e) of the SRC Act. 48 It then became necessary for the Tribunal to determine whether the reasonable administrative action had been taken in a reasonable manner. 49 It directed itself on this question consistently with the principles expounded by Robertson J in Comcare v Martinez (No 2) (2013) 212 FCR 272 at 290-291 and 293; [2013] FCA 439 at [72]-[73] and [82]-[83]. 50 The Tribunal carefully considered the conflicting evidence relating to what had occurred at the meeting on 21 March 2014 between Dr Favas and Colonel Harnwell. It accepted, as it was entitled to do, Colonel Harnwell's account of what had transpired. The meeting had occurred, at the instigation of Colonel Harnwell, to discuss Dr Favas's performance. Dr Favas quickly raised the question of whether he would be restored to his position of Chief Engineer and, when he was told that this would not happen, he became agitated and asked Colonel Harnwell to leave the office. Colonel Harnwell complied with this request. As a result the proposed discussion about Dr Favas's performance did not take place. This development did not impinge on the purpose for which the meeting was convened or on the manner in which it was conducted. 51 Having considered this evidence the Tribunal found that Colonel Harnwell had acted in a reasonable manner in his dealings with Dr Favas at the meeting.

DISPOSITION 52 Even if it be assumed that a relevant question or questions of law could be framed, Dr Favas has failed to establish any reviewable error on the part of the Tribunal. To a large extent his complaints relate to the factual findings made by the Tribunal. No basis for the Court's intervention has been established. 53 The appeal must be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.