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Tribunal: Deputy President Gary Humphries

The applicant had been working for the Department of Prime Minister and Cabinet when he made a Worker’s Compensation claim for anxiety. He claimed the anxiety was brought on when he was on non-work related sick leave and he received a letter from his employer directing him to return to work. The applicant made a claim for compensation to Comcare for his condition.

In mid-June 2015 the applicant had taken sick leave due to the deteriorating condition of his pre-existing diabetes. The applicant was assessed by an independent medical officer in late November 2015 and was found to be medically fit to return to work for four hours per day. A month later the applicant’s employer sent a letter directing him to return to work in January 2016 based on the medical opinion of his work capacity. After requesting a review of the decision and being informed that he must return to work the applicant attended his work premises on the indicated date but was unable to enter as he was too anxious.

On the same day the applicant saw his medical practitioner who indicated an impression that the applicant was suffering from anxiety. Following the assessment, the applicant lodged a Workers’ Compensation claim for anxiety.

The Safety, Rehabilitation and Compensation Act 1988 excludes Comcare from paying compensation for conditions that do not fall within the applicant’s employment relationship by the Commonwealth.[1] Comcare accepted that the applicant had sustained a psychological injury which was significantly contributed to by his employment but refused to cover the applicant because the injury occurred outside the scope of his employment.

Following the diagnosis of medical practitioners and the agreed facts by both parties, the Tribunal accepted that the applicant was suffering from an adjustment disorder with anxiety. The Tribunal’s decision then focused on whether the letter directing the applicant to return to work fell within the employment relationship.

The parties presented the Tribunal with two different interpretations of the employment relationship test based on past court decisions. The Tribunal was then required to consider which of the interpretations accurately reflected the law.

Comcare alleged that the letter was beyond the necessary relationship as it was outside the performance of the applicant’s duties. This argument was countered by the applicant’s representative who submitted that the letter informing the applicant he must return to work was a lawful direction given to him by his employer which is an integral element of an employment relationship.

After looking at all the evidence the Tribunal found that the giving of a direction or instruction to an employee, by their employer, is the basis on which the employee performs his or her duties. The Tribunal was satisfied that the letter sent to the applicant provided a lawful direction to return to work and that this direction was within the scope of an employment relationship.

The Tribunal set aside Comcare’s decision and substituted a decision that the applicant had suffered an injury, an adjustment disorder with anxiety, as defined by the act and was therefore entitled to compensation.

Read the full written decision on AustLii.


[1] Section 5B(1) of the Safety, Rehabilitation and Compensation Act 1988