Alan Barrie and Repatriation Commission
[2012] AATA 821
•21 November 2012
[2012] AATA 821
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5141
Re
Alan Barrie
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member S Penglis and Dr A Frazer, Member
Date 21 November 2012 Place Perth Pursuant to s 43 (1) of the Administrative Appeals Tribunal Act 1975 Cth, the reviewable decision dated 19 October 2011 is varied by removing the further reduction to the applicant's pension with effect from 8 August 2011, so that the decision is that the applicant's pension be assessed at 70% of the general rate with effect from 22 March 2002.
....(sgd) Mr S Penglis..............................
Senior Member S Penglis
Catchwords
Veterans Affairs – whether applicant able to work more than 8 hours a week – finding by Veterans Review Board that applicant able to work more than 8 hours a week upheld – decision to reduce pension to 70% of the general rate with effect from 20 July 2002 affirmed – decision to further reduce pension to 60% of the general rate from 8 August 2011 not affirmed - turns on its own facts
Legislation
Veterans’ Entitlements Act 1986 (Cth) section 24A(1)(a)
Cases
Nil
REASONS FOR DECISION
Senior Member S Penglis and Dr A Frazer, Member
21 November 2012
The applicant is a veteran who, since 19 December 1995, has been in receipt of a pension at the special rate in respect of, amongst other things, post traumatic stress disorder (PTSD).
By its decision dated 9 January 2007, the respondent assessed the applicant’s pension at 70% of the general rate to operate from and including 20 July 2002.
The applicant applied to the Veterans Review Board (VRB) to review the respondent’s decision. By its decision dated 19 October 2011, the VRB upheld the respondent’s decision to assess the applicant’s pension at 70% of the general rate to operate from and including 20 July 2002, and further decided that the applicant’s pension be reduced to 60% of the general rate with effect from 8 August 2011.
The applicant has applied to the Tribunal to review that decision.
THE ISSUE IN DISPUTE
It is not disputed by the respondent that the applicant suffers from PTSD.
Nor has the respondent sought to persuade the Tribunal to maintain that part of the reviewable decision further reducing the applicant’s pension to 60% of the general rate as of August 2011.
As to that, it is not apparent to the Tribunal from the VRB’s two Reasons for Decision why the VRB made that decision. The Tribunal enquired of counsel for the respondent whether he was able to assist the Tribunal in understanding the VRB’s reasons for doing so. Counsel advised that, like the Tribunal, he was not able to understand the basis for that part of the VRB’s decision.
It therefore follows that, at a minimum, the decision of the VRB must be varied in that respect. Counsel for the respondent accepted that this must be so.
Accordingly, the sole issue before the Tribunal is whether, on the evidence, the Tribunal finds that, during the relevant period, the applicant was able to undertake remunerative work for periods aggregating more than 8 hours per week.
As for the relevant period, it became clear during the course of the hearing that the applicant was only challenging the reviewable decision insofar as it related to the period 20 July 2002 to 9 January 2007. The relevance of the date 9 January 2007 is that this is the date of the respondent’s original decision.
As for the issue of whether the applicant was able to undertake remunerative work for periods aggregating more than 8 hours per week, the relevant section of the Veterans Entitlement Act 1986 (“Act”) is 24A(1)(a), which has the effect of continuing a veteran’s eligibility for payment of pension at the special rate unless “the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week”.
It is important to note, therefore, that the Act does not simply limit its reach to a veteran who actually undertakes remunerative work for periods aggregating more than 8 hours per week, but extends to a veteran who is capable of undertaking remunerative work for periods aggregating more than 8 hours per week (i.e. irrespective of whether or not the veteran has actually done so).
THE APPLICANT’S EVIDENCE
The applicant’s evidence in chief comprised of him affirming the relevant parts of his Statement of Facts and Contentions. The applicant summarised what he considered to be the key facts as follows:
“1. Between 2002 and 2005, I work for the United Nations on several occasions. On every occasion I left after having a major altercation with a superior and normally well before my contracted end date.
2. From Memory I at not time worked longer than 8 hours during any UN contracted period. This has never been proven by either VA or the VRB. The decision by both was based on the Balance of Probability’ and not hard evidence. If under our justice system everyone should be presumed innocent until proven guilty, I feel I have been harshly dealt with.
3. During the time I spent conducting any security surveys in 1996 or 1998, I DID NOT spend anymore than 8 hours per week doing so.
4. In 2002 I spent 7 month with WFP in Jerusalem. In 2003 I spent 9 weeks with WFP in Liberia. In 2004 I spent 3 months with the UN in Banda Ache. And in 2007 I spent about 3-4 weeks again in Israel with the UN. If we are to look at my time with the UN and my working hours then I believe that the 3 statements attached, (which cover 3 of these contracts) give a good indication that I DID NOT work a 40 hour week as the Respondent states. The UN system is unique in that it gives many the opportunities to work odd hours without on many occasions, any real supervision. As I was always employed as a Security Officer, I reported directly to the Country Representative or Boss. he or she always gave me complete freedom to carry out my tasks, which on a number of occasions I delegated to subordinates as the statement from Ms Zbeidi can attest to.
5. The Respondent makes issue with ‘time Sheets’ and as the attached statements indicate, the system of filling out ‘time sheets’ is done by an office junior and then given to other employees to sign. Time Sheets DO NOT indicate how many hours anyone works, only on what days they were present with the system open to abuse as is often the case. the fact that several statements from UN staff working in Head Quarter areas indicate that UN staff work 40 hours per week and this indicated on their monthly time sheets is a falsehood and does not in reality reflect what happens on ‘the ground’. Again the attached statements indicate this. Two of the attached statements are from persons who held very senior posts within the UN system and shows that what I have said is what happens in reality.
6. Much has been made of the fact that I have held several security related jobs since 200. I would say that as my current DVA and Com super pensions amount to about $1480.00 per fortnight, any my outgoings at around $2000.00, I can not live on my pensions along and must try to work. The mere fact that I have not held any job for longer than 4-5 months shows that I am still having difficulty in working with others as all have ended after heated arguments at work over some issue or another. This is an ongoing symptom of my PTSD and will most likely be there through out my life. Whilst I can work as such, it is my inability to continue to work that remains a big problem for me. I tried as can be seen from my previous work record to ‘get on top’ of my work life, but again and again my PTSD symptoms make it impossible to continue”.
The applicant supplemented his statement by oral evidence that he worked for Mr Lewis in the Gaza Strip, Palestine, for which he was paid a daily rate irrespective of whether or not he actually did any work. He said he worked no more than 3 hours in the time that he was there. He said “I think this should give anyone who has not either worked with, for or had any association with the United Nations, a fair idea of basically what can be on the table and what actual work might be done. It is not a matter for the United Nations to work 40 hours or 60 hours or 100 hours a week for X amount of dollars. They do not operate that way. Anyone who has worked for them or had anything to do with them would understand that very well”.
In answer to a question from the Tribunal, the applicant said that in the five or so weeks that he was in Palestine, he did not work for more than 3 hours. He then said “Actually I could slice that again. Three hours was spent inside the Gaza Strip. Actual work would have been less than an hour”. He said he was spending the balance of his time “sitting in a hotel in Ashdot, which is just south of Tel Aviv…..waiting for access”.
In response to questions asked of him by Counsel for the respondent, the applicant stated that whilst strictly his employment within SS Security might have required him to work up to 40 hours a week, he was under the impression before he left Australia “that it would be very little … work – real work – done” and that he had been informed of that by Mr Lewis.
The applicant was referred to paragraph 6 of the respondent’s submission to the VRB dated 23 May 2011. With one exception, the applicant confirmed the summary of his employment history to be correct. That summary is as follows:
· July 2002 – February 2003: Field Security Officer, World Food Programme, Jerusalem
· August 2003 – October 2003: Field Security Officer, World Food Programme, Monrovia
· November 2003 – December 2003: Security and Logistics Consultant, American Refugee Committee, Monrovia
· March 2004 – April 2005: Security Supervisor, Special Court for Sierra Leone
· September 2007 – July 2008: Security Officer, MSS Security
· July 2008 – June 2009: Security Consultant, Lawsons Security and United Group
The exception noted above was that the applicant’s employment in the Gaza Strip in the early part of September 2007 was in addition to (and not referred to in) that summary.
Counsel for the respondent referred the applicant to the witness statement of Philip Lewis. The applicant confirmed that this was the gentleman to whom he had referred earlier in his evidence and that Mr Lewis’ statement referred to the period when the applicant was working with him in or about January 2007. Counsel for the respondent pointed out to the applicant that Mr Lewis’s witness statement included the following: “The team spent no more than 4 to 5 hours per week inside Gaza during the period that Alan spent as a team member”. When asked whether what Mr Lewis had said was correct, the applicant said it was not, and that he spent less than that period inside Gaza. When asked if there was any reason that he could advise as to why Mr Lewis incorrectly stated the number of hours that the team spent inside Gaza, the applicant said “he was sitting in Dubai … we were sitting in Gaza”.
In respect to the applicant’s employment with World Food Programme between July 2002 and February 2003, the applicant confirmed that his “final salary” was US$54,000 per annum. He confirmed that his main duties involved the day to day security advice and support in the country and that there was no minimum amount of hours that the contract required him to do. The following exchange then occurred between Counsel for the respondent and the applicant
“In relation to that position, would it not have been the case that you could have been called upon to work more than 10 hours per week? – It could have been.
And you were ready willing and able to do that if that situation arose, were you not? – Yes”
Counsel for the respondent referred the applicant to a statement which had been provided to the Department of Veteran Affairs by a former business associate of his, Mr Malcolm Bramley. The substance of the statement was to the effect the applicant had told Mr Bramley that he would not be able to work more than 8 hours per week because he was on a pension and that if he did work more than 8 hours per week “I would just tell DVA that I am only working 8 hours a week”.
When asked whether the applicant could recall making such a statement to Mr Bramley, the applicant said he could not.
The applicant was then asked about his purchase of a house on the Greek island of Santorini. The applicant said he had purchased a house in Santorini, but could not recall when he sold it. He said he owned a house for “about 6 years, I guess”.
Counsel for the respondent challenged the applicant as to his inability to recall the dates, even approximate dates, when he purchased and sold the house in Santorini, but could remember not working more than 3 hours in a 5 week period in Gaza. The applicant explained that as follows: “Quite simply, because buying a house is an every day event for many people. Working in the Gaza Strip is not. I remember the Gaza Strip. My life was at risk. There were certain things that were happening within the political administration. It was a very political assignment. Yes, I remember that very well. Buying a house, what day I bought it, when I travelled – no”.
The applicant was then taken back to the summary of employment at paragraph 6 of the respondent’s submission to VRB. The following exchange occurred between Counsel and the applicant.
“Setting aside, for a moment, your relation to all that employment, whether or not you worked 8 hours or more a week, what I want to put to you is that you were ready, willing and able to do so if you were called upon by your employers? – I was ready to try, yes.
Yes and what I want to suggest to you, in relation to that employment, is that before you commenced, that you had some belief that you had the capacity to undertake the work that would be required? – I didn’t think of it like that.
It would be the case, would it not, that you would not put yourself forward to an employer to undertake work if you didn’t think, at the time, you were capable of undertaking it? – Yes, I thought I could do it”.
The applicant was referred to an email to his wife dated 13 February 2004, in which he wrote: “How is everything over there? How are things settling down after the Bramleys have left? All is well here - am still working away on shift. The current shift is about to change and asking for people to go onto permanent court shift and I have volunteered. If I get it it should at least give me an insight to how the special court system works and get to sit in on all the hearings. I will let you know how it turns out…… I am on late shift at the moment and finish at 11pm and start again tomorrow at 3pm and then I get 2 days off…”.
The applicant confirmed that, at the time, he was working shift work and had volunteered to go onto permanent court shift. He could not recall the hours of the shifts.
The applicant was then referred to an email he had sent to his wife on 10 April 2004, in which he wrote: “All well here at the moment, I am 5 day shifts and then 2 days’ rest, then onto 5 night shifts…..”. The applicant agreed that this reflected his situation at the time.
The applicant was also referred to an email dated 15 April 2004 which he had sent to his wife. In that email the applicant wrote: “…. at the moment I am on night shift (2000 hrs – 0700 hrs). It is my first one and I am a bit tired but I will get used to it soon enough.”
The applicant was asked whether he was working those hours, to which he said “Well on that day and on those days, yes” and that it involved 8 hours’ work a day.
After that period, but whilst still with the Court in Sierra Leone, the applicant was put on “special duties” which comprised looking after another Australian against whom accusations of sexual assault had been made.
The applicant was then shown “court attendance forms” for the period in which he was employed with the United Nations World Food Programme. Although not prepared by him, the applicant had signed them. The documents indicated the days when he had purportedly worked. They recorded times were well in excess of 8 hours a week.
The following exchange then occurred between the applicant and Counsel for the respondent.
“….were you saying that those were the days you worked? – no. No? Well, then why would you sign a document and append a signature to it if it truly didn’t represent what the circumstances were in relation to your employment in that period? – Because no one in the UN would be paid if that was the case. That does not accurately reflect how any of them work. None whatsoever.
If you had indicated, for example, that you hadn’t worked on any of those days, setting aside the weekends, which appear to be identified by the letter H, if you hadn’t attended work that day, would your pay have been docked? – Yes.
But again, as you have indicated, you were called upon to work, you were ready, willing and able to do so? – Yes. I was a free agent in all of those jobs. I could do what I wanted”.
In re-examination, the applicant:
·gave further evidence in respect to how Mr Lewis, from his base in Dubai, did not have contact with those based in Gaza on a day to day basis. He said that Mr Lewis “basically got a report at the end, you know, a month at a time”
·reiterated that, with respect to the UN timesheets, “the timesheet has no resemblance whatsoever to the amount of hours worked by any UN personnel I ever worked with”
·confirmed that he was being paid for his availability, not for actual work done by him;
·supplemented and elaborated on various other parts of his evidence in chief.
WITNESS STATEMENTS TENDERED BY APPLICANT
The applicant tendered three witness statements which the Tribunal received into evidence. The respondent did not object to this course being taken and did not seek to question any of the witnesses.
The Tribunal received into evidence a statement by Phillip Albert Lewis dated 31 May 2012. Mr Lewis first met the applicant some 36 years ago when they both served in the Australian Army. In 2007, Mr Lewis was the Middle East Regional Director for the United Nations Office for Project Services and was putting together a team of international trainers for a security programme in the Gaza Strip. He contacted the applicant to see if he would be interested in joining the team of which he did. Mr Lewis said:
“(the applicant’s) tasks during the period he was with the training team was to provide expert training to Palestians within the Gaza Strip on security–related issues. Alan Barrie spent about 5 weeks with the team and he told me he had left due to family issues. During the time he spent with the team, he, as well as the other members of the team, spent little time in the Gaza due to security death related concerns which were passed to us – by the Israeli Defence Force. I estimate that the team spent no more than 4-5 hours per week inside Gaza during the period Alan spent as member of the team”.
The Tribunal received a signed statement from Peter Halloran dated 18 July 2012. Mr Halloran confirmed that he worked with the applicant at the Special Court of Sierra Leone. He said that the applicant was employed by the Special Court of Sierra Leone in the Security Section and worked “irregular hours”. In due course he spent most of his time with Mr Halloran. Mr Halloran said he was “unable to say what Alan’s rostered hours were because he sometimes went to work for a very short period of time. Due to the time spent with me he would not have been able to undertake full time employment” with the Special Court.
The Tribunal received an undated statement by Areej Zbeidi, which stated as follows:
“I have known Alan Barrie for about 10 years, I first met him when we worked together in Jerusalem for the United Nations…. Alan was my boss during that time….his job was to head the Security Section of the Office and mine was to assist him. To the best of my knowledge Alan spent very little time in the office and left me to run the daily basic security related tasks. He signed his monthly attendance sheet as we all did, but that sheet was compiled by the office admin lady and we all just signed it no matter what the details were. The sheet merely stated that a person was present or in attendance for the day listed, but in reality bore no real accuracy to actual work done and no UN staff member is paid per hour, rather we were all paid a monthly salary irrelevant of days or hours worked. Alan spent the majority of his time away from the office doing basically what he wanted. That just the way the UN operates”.
MEDICAL EVIDENCE
The Tribunal received into evidence copies of various letters provided by Dr Michael Woodall, the applicant’s consultant psychiatrist. Dr Woodall opined that he considered the applicant incapable of undertaking work of more than 8 hours per week in any form of occupation.
The Tribunal also received evidence from Dr Anthony Mander who held a contrary view. Dr Mander was called to give evidence on behalf of the respondent and attended before the Tribunal in person.
During cross examination, Dr Mander confirmed that memory loss was one of the symptoms of PTSD.
The Tribunal notes that, in a large part, the medical opinions turn on the author’s respective understandings of the facts. For this reason, it is unnecessary to analyse these opinions in order to determine the outcome of this matter. The outcome of this matter turns on the Tribunal findings of fact, based on the evidence, as to what the applicant did and/or was able to do between 20 July 2002 and 9 January 2007.
ANALYSIS
The issue before the Tribunal is to be determined by reference to the evidence as a whole. For example, a finding that the Applicant worked more than 8 hours a week in one period is relevant not only to a determination of the issue in respect to that period, but is also relevant insofar as inferences might be drawn from such evidence that although he did not in fact work more than 8 hours a week in another period, he nevertheless had a capacity to do so given the proximity in time between the two periods.
As a consequence, an analysis of the evidence and the findings to be drawn from it is most conveniently undertaken in this case starting from the end of the relevant period (in respect of which the evidence is more certain) and working backwards to the beginning of the relevant period.
It was not in dispute that the applicant worked as a security officer with MSS Security from September 2007 until July 2008 and that he did so for remuneration and for periods exceeding in aggregate 8 hours per day. Nor was it disputed by the applicant that, since then, he has been working from time to time and that, when he has been employed, he has been working for remuneration and for periods aggregating more than 8 hours per week.
The period when the applicant was last employed prior to September 2007 was for some five weeks in early 2007 when he worked for the United Nations Office for Project Services. The Tribunal accepts the applicant’s explanation for the discrepancy between his evidence and that which is contained in the witness statement of Phillip Alan Lewis as regards the time actually spent by the applicant within the Gaza Strip as opposed to sitting in a hotel in Ashdot “waiting for access”. Nevertheless, sitting in a hotel in Ashdot ”waiting for access” was something which the applicant did as a part of his employment for remuneration and certainly for more than eight hours a week.
In this regard it is wrong to limit that section 24A1(a) of the Act (as the applicant implicitly suggests) applies only to active, and not to sedentary work. Giving the word “work” its ordinary and natural meaning, the Tribunal finds that apart from when he was sleeping, attending to private or domestic matters and any recreational time he may have had, the applicant was otherwise at work when he was overseas with the United Nations Office for Project Services in early 2007. Clearly waiting for access to the Gaza Strip was part of what the applicant was required to do as part of his work, a proposition that is fortified by the fact that he was remunerated for such time.
Even if a different view be taken as to whether what he was doing overseas other than sleeping, attending to private or domestic matters and recreational time was not “work”, by accepting the position knowing what it might entail by way of active work, the applicant clearly held himself out as being ready, willing and able to do such work (and admitted as much in cross examination).
The Tribunal has no hesitation therefore in finding that, during that period, the applicant was able to undertake remunerative work for periods aggregating more than 8 hours per week and did in fact undertake such work for periods aggregating more than 8 hours per week.
The period when the applicant was employed prior to early 2007 was from March 2004 to April 2005, when he was employed as a security supervisor for a Special Court for Sierra Leone. In respect of that period, the Tribunal again finds that the applicant not only had the capacity of undertaking remunerative work for periods aggregating more than 8 hours per week, but that he in fact did undertake remunerative work for periods aggregating more than 8 hours per week. The relevant evidence which causes the Tribunal to so find includes the following:
(a)the emails from the applicant to his wife in February and April 2004;
(b)the applicant’s answers to questions put to him by Counsel for the respondent that he would not have put himself forward to an employer to undertake work that he didn’t think he was capable of undertaking;
(c)the fact that the applicant performed the “special duties” which had been given to him which had necessarily involved more than eight hours a day. The fact that this comprised no more than looking after an Australian against whom accusations of sexual assault had been made, does not detract from the fact this was clearly something which he had been required to do by his employer for which he was remunerated and which involved more than eight hours work a week.
Prior to March 2004, the applicant worked in Monrovia between August and December 2003. First, from November 2003 to December 2003, he worked as a security and logistics consultant for the American Refugee Committee. August and December 2003. Then, between August and October 2003, the applicant worked as a Field Security Officer for the World Food Programme.
The evidence with respect to this period is limited. In cross examination, the applicant confirmed that his main duties as a Field Security Officer “involved the day-to-day security advice and support to the country director. Other duties involved writing/ implementation of WFB/UN Security policies/directions and guidelines covering the safety and security of WFB staff and equipment”.
Among the documents provided to the Tribunal pursuant to s37 of its enacting legislation was a “Statement” from the HR officer of Human Resources division of the World Food Programme stating that:
·in respect to the period from March 2002 to February 2003 the applicant was employed under a contract with the UN World Food Programme “on a full time basis working forty hours per week”… and that his earnings for this UN World Food Programme contract was US$29,566.61.
·in respect to the period August 2003 to October 2003, again the applicant was employed under a contract “on a full time basis working forty hours per week” and his total earnings for that period US$11,400.59.
The applicant signed attendance records showing, for example, attendances in August and September 2003 greatly exceeding 8 hours a week. In regard to these documents, however, there is the applicant’s evidence (to which reference has been made above), which evidence is verified by the witness statement of Areej Zbeidi. The Tribunal therefore places no weight on those documents.
In the circumstances, although there is an inference that might be drawn that the applicant worked more than 8 hours a week over this period, given the applicant’s denial of the same and the absence of any reliable evidence to rebut his denial, it is not possible for the Tribunal to conclude, as a fact, that the applicant did work more than 8 hours per week during this four month period. Nevertheless, having regard to all of the evidence, including the nature or the postings, the work the applicant was making himself available to do, the amounts he was paid, the fact that he travelled to Monrovia to perform work under the contracts and the implicit representation that he may well be able to perform these contracts (as well as the Tribunal’s findings with respect to his employment subsequent to this period), the Tribunal has no hesitation in finding, as a fact, that the applicant had the capacity to undertake remuneratory work for periods aggregating more than 8 hours per week.
The earliest period of employment during the relevant period was between July 2002 and February 2003, when the applicant was employed as a Field Security Officer for the World Food Programme in Jerusalem. As to that, the applicant’s concluding salary was US$54000 per annum), he was involved in the day to day security advice and support in the country and he was paid under his contract irrespective of the number of hours actually worked each week.
Again, although there is an inference that might be drawn that the applicant worked at least 8 hours a week, given the applicant’s denial of the same and the absence of any reliable documentary evidence inconsistent with his denial, the Tribunal is not prepared to conclude that he did so.
However, by accepting the contract, flying to Jerusalem, and accepting his remuneration, it is clear that the applicant implicitly represented that he was well able to work more than 8 hours a week.
Given that, and given the findings already made with respect to subsequent periods, the Tribunal again has no hesitation in finding, as a fact, that during this period the applicant was capable of undertaking remunerative work for periods of more than 8 hours a week.
As for the months when the evidence establishes that the applicant was not working at all, the Tribunal finds, as a fact, that the applicant was nonetheless capable of undertaking remunerative work for those periods aggregating more than 8 hours per week. The Tribunal’s reasons for reaching this conclusion are as follows:
(a)the Tribunal’s findings that, during numerous and sometimes lengthy periods, the applicant did in fact undertake remunerative work for periods aggregating more than 8 hours per week.
(b)the Tribunal’s findings that for specific periods when the Tribunal has not been able to find that the applicant did in fact undertake remunerative work for periods aggregating more than 8 hours per week, he was none less capable of doing so;
(c)the absence of any evidence, that during the whole of the period in question there was significant improvement or worsening of the applicant’s condition that it would have had a material affect (either way) on the applicant’s capacity to undertake remunerative work for periods aggregating more than 8 hours per week.
CONCLUSION
Save to vary the reviewable decision to remove the further reduction to the applicant’s pension as at 8 August 2011, the decision of the VRB must otherwise be affirmed.
62.
63. I certify that the preceding 61 (sixty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Penglis and Dr A Frazer.
…(sgd) T Freeman……..
Associate
Dated 21 November 2012
Date(s) of hearing
21 August 2012
Applicant In person Counsel for the Respondent
Solicitor for the Respondent
Mr John Wallace
Ms Ling
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