Comcare unreasonably change flexible working arrangement

Monday 20 May 2019
Ursula McBride

The Administrative Appeals Tribunal (AAT) made an important decision recently in favour of a Commonwealth employee working in the Department of Prime Minister and Cabinet (the Department).

The injured worker lodged a compensation claim for her psychiatric condition on the basis that management action in relation to her flexible working arrangement was taken in an unreasonable manner.  Comcare initially denied this claim, however this was overturned at the AAT.

Ursula McBride, Senior Associate at Adviceline Injury Lawyers explains why this recent decision is important: “Many Commonwealth employees find that a change in Government will lead to significant changes within a certain Department or Ministry.

If this change is not managed sensitively or appropriately it has the potential to severely affect the health and wellbeing of long term public service employees.”

Ursula found this particularly true in the recent case of Prowse v Comcare where the worker was a Commonwealth employee. Prior to sustaining her work related injury, she had suffered from a sleep disorder, brought upon by tragic personal circumstances. Her employer was aware of this condition and on the basis of medical support from her treating doctor, put in place a flexible working arrangement that allowed her to alter her hours of work to come in later in the morning and make up any hours by staying back later or on working more hours on subsequent days.

After the change in government in 2013, significant changes were made to the Department, and in mid-2014 to early 2015 some staff departed. Consequently, the Commonwealth employee’s workload significantly increased, requiring her to manage her original workload and take on several new projects.  She felt inexperienced in the new area and felt she was not qualified to work on these projects. During this time, the worker was also under the supervision of a new Manager.

Ursula found many similarities in the complaints of this worker to clients she currently works with in her Comcare practice.

“The worker felt her new Manager was targeting her; had provided her with an unequal share of the workload and also felt her Manager did not have the skills to suitably carry out her role as supervisor,” she explains.

She made a complaint in writing about these issues to her Manager and the following day was asked to attend a one-on-one meeting. During that meeting, the Manager withdrew the flexible working arrangement due to “operational needs” and also allegedly told the worker that if she was unhappy at work she “should find another job”.

Several further incidents occurred after this time and the worker had several periods of time off before ultimately ceasing work in May 2016.

The AAT held that the change to the worker’s flexible working arrangement was a reasonable management action, however it was not taken in a reasonable manner. In particular, it was found the employer acted too quickly in introducing a direction to commence working at 9am and should have instead given the worker the chance to obtain further medical material in support of her flexible working arrangement.

In coming to their conclusion, the AAT held that Comcare law only requires that the action be reasonable, not that it is the most reasonable action available.  The AAT further found that the worker’s psychiatric injury would have occurred even if her flexible working arrangement had not been removed.

Ultimately, the AAT found the worker’s condition was caused by multiple events: including the increase in her workload, the discovery that no support had been provided on the work she had been doing prior to the increase, the tense relationship that had developed between the worker and her manager, the worker’s perception she was being treated differently to her colleagues and the withdrawal or change to her flexible working arrangement.

The worker was thereby found to have suffered a work related injury and was entitled to compensation.

“Let us hope that whatever the outcome of the May 2019 Federal election, any major change affecting Commonwealth employees, takes into account what is best for their overall health and wellbeing,” concluded Ursula.

For more information about this case and your entitlements under the Comcare compensation scheme, please contact one of our lawyers directly on (03) 9321 9988.

contact_btn  find-out-btn_what-to-do-if-you-are-injured

Go Back

Related Articles