Australian Postal Corporation v Nunez

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.