Comcare employer liable for psychological injury after bungled investigation

A commonwealth department of Disability, Housing and Community Services was found liable,  in October 2011,  for a worker’s psychological injury after it conducted an “inadequate and unreasonable” investigation into the injured worker’s alleged wrong-doings.

Comcare employer liable for psychological injury after bungled investigation

The injured worker claimed she was suffering anxiety, depression and an adjustment disorder because of  the behaviour and procedures adopted by her senior manager in the ACT Department of Disability, Housing and Community Services.

The claim came before the Adminisrative Appeals traibulal (AAT) for review after being rejected by Comcarenot once but twice!

The AAT heard that , in March 2009,  the worker came under suspicion for her involvement firstly in allocating public housing to a Department employee’s relative, and secondly in processing a mutual tenancy exchange for two other co-workers. It was alleged she expedited the first, and improperly allocated the task of determining the second.

The worker said she dealt with both matters in accordance with policy and practice, which meant they were to be kept confidential and only assessed by higher-level officers.

The worker’s supervisor, however, questioned her adherence to correct procedure.
A week later, with no warning, the worker was called to a meeting with the Department director. He told her she was to be suspended for one month with pay, effective immediately. She was told to hand in her pass, keys and mobile and was escorted from the building.

The worker claimed that as a result of the suspension she suffered migraines, depression and anxiety, and could not eat or sleep. Her GP diagnosed her with post-traumatic stress disorder, severe anxiety and severe depression.

The Department extended the suspension three times while the issue was investigated, but ultimately found none of the allegations proven. The suspension was lifted and the worker given informal counselling, before she began a graduated return to work in another office in February 2010.

The AAT considered whether the decisions to initiate the investigation and to suspend the worker were reasonable.

The Department argued its steps were justified because it considered the worker’s actions involved “serious misconduct”. It argued that if the worker had shown favour to the employee’s relative, the matter would damage the Department’s reputation if it became public knowledge.

Examining the evidence that prompted the suspension, AAT Senior Member Professor Robin Creyke found numerous failings in the Department director’s investigation. She said he had “not fulfilled his obligation to gather sufficient information”.

There were “alternative and innocent” interpretations of procedural abnormalities, which the director would have been aware of, had his investigation been more “robust”, she said. She also noted that a more insightful approach would have alerted him to the need to clarify some of the policies and procedures.

Senior Member Creyke said the director’s decision needed to be “based on evidence that was sufficiently probative to meet the standard appropriate for a matter of this seriousness”. She said instead, he relied “too heavily on the views of the person making the allegations”.

Given the nature of the allegations it was “unwise” of the director not to seek legal advice on the steps he proposed to take, she added.

Even assuming the worker had been involved in serious misconduct, there were options other than suspension which would have been less damaging to the worker’s career, Senior Member Creyke noted. There was no consideration of other steps and no notes taken at the meeting where the director decided on his course of action.

The Senior Member concluded that the flaws in the investigation made it an unreasonable process. The decision to hold the disciplinary meeting with no notice and no support person, considering the “paucity of information”, was consequently unreasonable. Finally, she found the decision to immediately suspend the worker without considering any other options was also unreasonable.

Jane Amanda Sands and Comcare [2011] AATA 710 (14 October 2011)


We can’t help wondering what it is about Charities, Hospitals and Social Welfare Departments/Organisation – they are well known to treat their staff the worst, and their injured workers like animals. Talk to ANY medical practitioner who regularly sees patients employed in those “facilities”, and who treats employees who have been injured there for confirmation. It is just INSANE and INCOMPREHENSIBLE.