FEDERAL COURT OF AUSTRALIA
Australian Postal Corporation v Nunez [2014] FCA 1095
Citation: Australian Postal Corporation v Nunez [2014] FCA 1095 Appeal from: Re Edison Nunez and Australian Postal Corporation [2014] AATA 125 Parties: AUSTRALIAN POSTAL CORPORATION v EDISON NUNEZ File number: NSD 348 of 2014 Judge: GRIFFITHS J Date of judgment: 10 October 2014 Catchwords: ADMINISTRATIVE LAW – interpretation of s 37(7) of the Safety Rehabilitation and Compensation Act 1988 (Cth) – appeal from decision of Administrative Appeals Tribunal – whether a question of law arises – Meaning of “reasonable excuse”. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44(1)
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 36, 37, 38Cases cited: Australian Postal Corporation v Forgie (2003) 202 ALR 63
Australian Postal Corporation v Pascoe [2003] FCA 390
Australian Postal Corporation v Pascoe [2005] FCA 289
Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449
Comcare v Singh [2012] FCA 136
Pascoe v Australian Postal Corporation [2004] FCAFC 4
Telstra Corporation v Administrative Appeals Tribunal [2003] FCA 102Date of hearing: 30 September 2014 Place: Sydney Division: GENERAL DIVISION Category: CATCHWORDS Number of paragraphs: 68 Counsel for the appellant: M Best Solicitors for the appellant: Sparke Helmore Counsel for the respondent: B McManamey Solicitors for the respondent: Turner Freeman
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 348 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: AUSTRALIAN POSTAL CORPORATION
AppellantAND: EDISON NUNEZ
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
10 OCTOBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of and incidental to the proceeding.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 348 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: AUSTRALIAN POSTAL CORPORATION
AppellantAND: EDISON NUNEZ
Respondent
JUDGE:
GRIFFITHS J
DATE:
10 OCTOBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Such an appeal is confined to a question of law. That is an important jurisdictional limitation.
The appeal relates to a decision dated 7 March 2014 of the Administrative Appeals Tribunal (AAT). The AAT decided that:
(a)the respondent’s refusal and failure to attend Waterloo Mail Centre on 21 March 2012, as required by the appellant’s rehabilitation program dated 19 March 2012, was not without reasonable excuse for the purposes of s 37(7) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act);
(b)the appellant’s decision dated 22 May 2012 should be set aside and substituted with a decision that the respondent did not fail or refuse to undertake the program without reasonable excuse;
(c)the payment of benefits and expenses suspended as a result of the appellant’s decision should be made from the date they were suspended;
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Details
- Case
- [2014] FCA 1095
- Decision Date
CaseChat Overview and Summary
The appeal in Australian Postal Corporation v Nunez involved the Australian Postal Corporation (appellant) and Mr Nunez (respondent), who was employed by the appellant for 25 years. The dispute arose from Mr Nunez's claim for rehabilitation and compensation after he alleged he suffered psychological injury due to harassment and bullying at his workplace. The appellant accepted the claim and paid compensation and medical expenses. However, the issue of whether Mr Nunez had a reasonable excuse for failing to undertake a rehabilitation program was contested. The Administrative Appeals Tribunal (AAT) found that the reasons provided by Mr Nunez for his failure to attend the rehabilitation program were determinative of the question under s 37(7) of the Safety Rehabilitation and Compensation Act 1988 (Cth).
The legal issues before the court were whether the AAT misdirected itself by finding that the reasons provided by Mr Nunez were determinative of the question under s 37(7) of the Act, whether the AAT misdirected itself by reviewing the appropriateness of the rehabilitation program, and whether the AAT misdirected itself by failing to conduct a merits review and assess the reasonableness of Mr Nunez's excuses for not undertaking the program. The court considered the appropriate way to challenge a rehabilitation program and the factors relevant to a decision under s 37(7) of the Act. It also examined whether the AAT had considered the circumstances surrounding Mr Nunez's failure or refusal to undertake the rehabilitation program and evaluated what was reasonable in the circumstances.
The Full Court held that the AAT did not pose the question whether Mr Nunez had a reasonable excuse for his failure to undertake the rehabilitation program, but rather considered whether the program was an appropriate one for him. The court emphasised that the s 37(7) process requires consideration of the circumstances surrounding the employee's failure or refusal to undertake a rehabilitation program and an evaluation of what is reasonable in the circumstances. The Full Court dismissed the appeal and ordered the appellant to pay the respondent's costs of and incidental to the proceeding.
The legal issues before the court were whether the AAT misdirected itself by finding that the reasons provided by Mr Nunez were determinative of the question under s 37(7) of the Act, whether the AAT misdirected itself by reviewing the appropriateness of the rehabilitation program, and whether the AAT misdirected itself by failing to conduct a merits review and assess the reasonableness of Mr Nunez's excuses for not undertaking the program. The court considered the appropriate way to challenge a rehabilitation program and the factors relevant to a decision under s 37(7) of the Act. It also examined whether the AAT had considered the circumstances surrounding Mr Nunez's failure or refusal to undertake the rehabilitation program and evaluated what was reasonable in the circumstances.
The Full Court held that the AAT did not pose the question whether Mr Nunez had a reasonable excuse for his failure to undertake the rehabilitation program, but rather considered whether the program was an appropriate one for him. The court emphasised that the s 37(7) process requires consideration of the circumstances surrounding the employee's failure or refusal to undertake a rehabilitation program and an evaluation of what is reasonable in the circumstances. The Full Court dismissed the appeal and ordered the appellant to pay the respondent's costs of and incidental to the proceeding.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of and incidental to the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The grounds of appeal in relation to the remaining two questions of law were stated in the notice of appeal to be as follows:(a)the AAT misdirected itself by finding that the reasons provided by the respondent as to why he refused or failed to attend to the Waterloo Mail Centre on 21 March 2012 were determinative of the question that arose for its consideration under s 37(7) of the Act;(b)the AAT misdirected itself by conducting a review of the appropriateness of the program; and(c)the AAT misdirected itself by failing to conduct a merits review and, in particular, by failing to assess the reasonableness of the respondent’s excuses for not undertaking the program.Broad factual background The broad factual background to the appeal is not in dispute. It may be summarised as follows. The respondent has been employed by the appellant for 25 years in administrative positions at various Sydney suburban mail centres. He worked at the Rockdale Mail Centre until it was closed. He was then appointed to work at mail centres at Croydon Park and Strathfield. He claimed that at these two centres he encountered harassment and bullying, which he had not encountered at Rockdale. He complained repeatedly to the appellant. He applied for positions at Kingsgrove, which is near to where he lives, but was unsuccessful. When he was notified on 25 August 2011 that he would not be transferred to Kingsgrove, he ceased work that day. On 7 September 2011, the respondent lodged with the appellant a claim for rehabilitation and compensation. He described his illness as acute anxiety reaction, post-traumatic stress and depression. He consulted his local doctor, Dr Nigro, and has stayed off work ever since, during which time he has been in what the AAT described as “acrimonious discourse” with the appellant. The appellant accepted that the respondent suffered psychological injury in connection with his work and he received payments of compensation and medical expenses under the Act. On 13 October 2011, the respondent was assessed by Dr Abeya, a consultant psychiatrist who was retained by the appellant. In her report dated 17 October 2011, Dr Abeya stated her belief that, if the respondent was exposed to his previous work environment, it was likely that he would feel the same amount of anxiety that he had expressed. She added:Given the situation and his incapacity to accept going back to work in the same environment, I feel he should be considered for employment at another centre. The respondent was again assessed by Dr Abeya on 8 March 2012. She prepared a further report dated 12 March 2012. In that report, she stated:Given the current level of symptoms I feel that it would be necessary to start Mr Nunez on just a few hours of work a day. I would suggest possibly starting with two hours of work and slowly working up to a full day, entirely being dependent on his recovery. What is possibly most important is that he does not return to work at Strathfield, which was related to the previous allegation of harassment, as this would clearly evoke a lot of difficult emotions and possibly worsen his symptoms. I believe work at an office as close to his home as possible would be most advisable given his current state of illness. Yet as Mr Nunez himself expressed, it would be possible for him to restart work in a couple of weeks provided that he comes to an agreement with Australia Post. I anticipate that the major restriction would be more the difficulty in coming to an agreement about a place of work, which would not be entirely due to his psychiatric illness. From a practical point of view, I feel that Mr Nunez himself would only accept work at Kingsgrove, and I wonder whether this may be possible as an initial place of work in the interest of having this worker back to employment as soon as practicably possible. Certainly I do not feel there is any major psychiatric impediment to Mr Nunez working in another place that is close to his home. (Emphasis added).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
An appeal against Whitlam J’s decision in Pascoe was dismissed. The Full Court observed in [14] that the appropriate way to challenge a particular program was to seek a reconsideration under s 38(2), which assessment could involve the factors set out in s 37(3). It added, however, at [14]:… Unless the employee has sought a reconsideration, when considering whether an employee has a reasonable excuse for failing to undertake a rehabilitation program, the program in question is to be taken to be appropriate for the employee. It is no part of the s 37(7) exercise to gainsay the program made by an approved program provider following a s 37(1) determination. Consequently the factors set out in s 37(3) of the Act are relevant only to a decision made under s 37(1), as suggested by the opening words of s 37(3). As noted by the primary judge, although the s 37(3) factors are not necessarily irrelevant to a decision to be made under s 37(7), they do not inform that decision. (Emphasis added). At [15], the Full Court held that, although the Tribunal had expressed its findings in terms of “reasonable excuse”, the Tribunal:did not actually pose for itself the question whether Mr Pascoe had an excuse for his failure to undertake the rehabilitation program, the subject of the determination by Australia Post on 25 May 1999, or whether that excuse was reasonable. Rather, it considered whether the program was an appropriate one for Mr Pascoe. At [16], the Full Court referred to [35] of the Tribunal’s reasons, which set out various matters which the Tribunal said helped explain Mr Pascoe’s failure or refusal to engage in the rehabilitation program. They included his request that he be placed in a position which was suited to his physical restrictions and training background, his preference for working outdoors, and evidence from a Dr Hollo to the effect that Mr Pascoe could not cope with the idea of working indoors. The Full Court observed at [17] that these issues or reasons identified by the Tribunal were “reasons why the program may not be suitable for Mr Pascoe, but they do not bear on the question of whether he had a reasonable excuse for failing to attend to undertake the program” (at [17]). In [18], the Full Court referred to Kiefel J’s decision in Telstra Corporation v Administrative Appeals Tribunal [2003] FCA 102, in which her Honour concluded that, generally speaking, s 57(2) (which was a similar provision to s 37(7)) “requires a reason personal to the employee” and not an excuse which is provided by the Tribunal’s opinion as to the need for the examination. In Pascoe, the Full Court reinforced this point by reiterating in [19] that s 37(7) requires an excuse “personal to the employee” and not an opinion by the AAT as to the appropriateness of the particular program. And in [20] in Pascoe, the Full Court reaffirmed what the Full Court had said in an earlier decision (Australian Postal Corporation v Forgie (2003) 202 ALR 63 at [40]), that the s 37(7) process “… requires that the person at least consider the circumstances surrounding the employee’s failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances”.
Ratio Decidendi
Legal Principle Established
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