Generally, a Comcare claim will be accepted if the injury ‘arose out of or in the course of employment.’ This test is satisfied if your employment is one of the causes of your injury. It does not require your employment to be the sole cause.
However, the defence of ‘reasonable administrative action’ – which is management action taken against a worker in a reasonable way – is often used to deny Comcare claims, particularly those relating to psychiatric injury. The defence will be successful if it can be shown that your injury has arisen, in any part, due to reasonable administrative action. This means that if reasonable administrative action has partly contributed to your psychiatric injury, the whole claim can be denied. Three recent cases involved the defence of reasonable management but were successfully defeated.
In Drinkwater v Comcare , Deputy President Constance found that the policy of the Australian Border Force to redeploy employees after a specified time-frame was not administrative action in respect of Mr Drinkwater’s employment. The Tribunal found that the reasonable administrative action defence deals with “actions directed specifically to the individual employee’s employment, not to the implementation of a policy of the employer.” Therefore, matters of general administration, management and implementation of policy are not administrative action.
In Chambers v Comcare the Tribunal found that while a negative performance review and subsequent decision to transfer Mr Chambers may amount to administrative action, it was not reasonable administrative action. The employer never detailed to Mr Chambers what he had done or been given a real opportunity to respond and improve his performance. The finding that this was not reasonable administrative action was upheld by the Federal Court.
In Wieczorek v Comcare the Tribunal found the Department of Health’s execution of an underperformance plan, while reasonable administrative action, was not undertaken in a reasonable manner. The Department failed to keep file notes of meetings with Ms Wieczorek over her performance management, failed to advise that she was entitled to have a support person at each performance meeting, failed to advise of possible consequences if her performance did not improve and failed to provide her with a copy of the relevant action plan. In reaching the finding that this reasonable administrative action was not undertaken reasonably the Tribunal noted that “a failure to observe written policies prescribed for managing employee conduct must be regarded as ‘prima facie’ evidence of a failure to execute action in a reasonable manner.”
These cases demonstrate that a defence of reasonable administrative action can be successfully challenged. The starting point is to look at what is the alleged administrative action and ask the following questions:
If the answer is no to any one of the above questions it is likely that the defence of reasonable administrative action can be overturned.
If you would like more information, or to discuss your injury, call a lawyer direct for free legal advice on (03) 9321 9988.Go Back