Aboushadi and Telstra Corporation Ltd - [2004] AATA 35

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 35
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/418

GENERAL ADMINISTRATIVE DIVISION )

Re YOUSSEF ABOUSHADI

Applicant

And

TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Date19 January 2004
PlaceSydney

Decision The decision under review is set aside and the matter remitted to the respondent for reassessment of the rate of incapacity payments payable to Mr Aboushadi during the relevant period in accordance with the tribunal’s finding that s 19 of the Safety, Rehabilitation and Compensation Act 1988 applies on the basis that the onset of Mr Aboushadi’s incapacity for work and the time of his retirement coincided in time at 4.51 pm on 13 September 1999. Costs are payable to the applicant in accordance with the tribunal’s general practice direction.
...............................................
Senior Member

6. In Re Hammerton and Comcare (1995) 21 AAR 204, 223 the tribunal explained the purpose of s 20 of the Act as being that the Commonwealth will not pay an amount, by way of compensation in respect of a period of time, when it (the Commonwealth) is already paying an equivalent amount for the same period of time but in respect of a different matter (ie superannuation). Only the amount attributable to contributions made by the Commonwealth is deducted from incapacity weekly payments as the superannuation amount.
7. In order to see whether Mr Aboushadi’s payments are properly affected by s 20 I draw from s 20 the following issues against which to test Mr Aboushadi’s situation:
(a)Was Mr Aboushadi an employee incapacitated for work as a result of an injury under the Act?
(b)If the answer to (a) is yes, did Mr Aboushadi retire be it voluntarily or compulsorily?
(c)If the answer to (b) is yes, did he receive a pension under a superannuation scheme?
(d)If the answer to (c) is yes, did he receive the pension as a result of the retirement?
(e)If the answer to (d) is yes, was Mr Aboushadi incapacitated for work before he retired?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
(A) Was Mr Aboushadi an employee incapacitated for work as a result of an injury under the Act?
8. I find that the answer is yes. This was agreed between the parties and incorporated into a decision by consent issued by the tribunal on 26 February 2001.
(B) If the answer to (a) is yes, did Mr Aboushadi retire be it voluntarily or compulsorily?
9. I find that Mr Aboushadi ceased work involuntarily at the close of business on 13 September 1999. This is supported by his Comsuper benefit application form. Dated 12 March 2001 it gives 13 September 1999 as the date of cessation of employment.
(C) If the answer to (b) is yes, did he receive a pension under a superannuation scheme?
10. Yes. I find that Mr Aboushadi received a pension under a superannuation scheme. On 2 September 2002 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] AATA 35
Decision Date: 19 January 2004

CaseChat Overview and Summary

The matter before the court involved Mr Aboushadi and Telstra Corporation Ltd, where the dispute centred around the rate of weekly compensation payments for Mr Aboushadi's incapacity for work due to an adjustment disorder. Mr Aboushadi was compulsorily retired from his employment and received a superannuation pension from the date of his employment cessation. The court had to determine the correct rate of incapacity payments considering that Mr Aboushadi's incapacity and retirement occurred simultaneously. The Safety, Rehabilitation and Compensation Act 1988 and the Administrative Appeals Tribunal Act 1975 were central to the legal issues at hand.

The primary legal issue was the applicable rate of Mr Aboushadi’s incapacity payments, specifically whether the provisions of section 19 of the Safety, Rehabilitation and Compensation Act 1988 applied, given that his incapacity and retirement occurred at the same time. The court had to interpret the relevant statutory provisions and consider the impact of Mr Aboushadi's superannuation pension on the calculation of his incapacity payments. The decision hinged on accurately applying the legislative framework to the facts of Mr Aboushadi's case and ensuring consistency with previous cases such as Re Hammerton and Comcare and Re Sullivan and Comcare.

The court concluded that the decision under review was incorrect because it did not properly apply the provisions of section 19 of the Act, which provides for a specific rate of payment when an employee becomes incapacitated for work and retires simultaneously. The court found that the tribunal had erred in its assessment and set aside the decision. The matter was remitted to the respondent for reassessment of the rate of incapacity payments payable to Mr Aboushadi during the relevant period. The court also ordered that costs were to be paid to Mr Aboushadi in accordance with the tribunal’s general practice direction.

The court's decision mandated a reassessment of the compensation payments to Mr Aboushadi, ensuring that the correct statutory rate was applied from the date of his incapacity and retirement. This reassessment aimed to align with the tribunal's findings and legislative provisions, providing Mr Aboushadi with the appropriate compensation for his incapacity for work.

Orders

Orders of the court

The decision under review is set aside and the matter remitted to the respondent for reassessment of the rate of incapacity payments payable to Mr Aboushadi during the relevant period in accordance with the tribunal’s finding that s 19 of the Safety, Rehabilitation and Compensation Act 1988 applies on the basis that the onset of Mr Aboushadi’s incapacity for work and the time of his retirement coincided in time at 4.51 pm on 13 September 1999. Costs are payable to the applicant in accordance with the tribunal’s general practice direction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		YOUSSEF ABOUSHADI