Bannura v Secretary, Department of Education
[2022] NSWPIC 106
•16 March 2022
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Bannura v Secretary, Department of Education [2022] NSWPIC 106 |
| APPLICANT: | Sol Bannura |
| RESPONDENT: | Secretary, Department of Education |
| PRESIDENT’S DELEGATE: | Kathryn Camp |
| DATE OF DECISION: | 16 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Work capacity dispute; whether the applicant is able to work in “suitable employment”; section 32A of the Workers Compensation Act 1987; whether the role of vocational educator is suitable employment; absence of relevant qualification; Held – the role of vocational educator is not suitable employment; applicant has no current work capacity; award for the applicant for weekly payments of compensation. |
| ORDERS MADE: | 1. The respondent to pay the applicant weekly compensation, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $1,568 per week (as indexed periodically), for the period 22 January 2022 and continuing. 2. The respondent is to have credit for all payments of weekly compensation made to date, because of the application of s 298B of the Workplace Injury Management and Workers Compensation Act 1998. |
INTERIM PAYMENT DIRECTION
STATEMENT OF REASONS
INTRODUCTION
This matter concerns a dispute relating to a Work Capacity Decision which determined that the worker’s entitlement to weekly payments of compensation would cease for reason that he is able to undertake suitable employment within the meaning of s 32A of the Workers Compensation Act 1987 (the 1987 Act). For the reasons discussed below, the applicant’s claim for compensation is successful.
BACKGROUND
The applicant, Sol Bannura, sustained an accepted psychological injury in the course of his employment with the respondent, Secretary, Department of Education, as a careers and transition advisor/PDHPE teacher.
The respondent accepted the applicant’s injury and made payments of compensation, including weekly payments of compensation.
On 13 October 2021, iCare issued a Notice of Decision pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to the applicant that his weekly payments would cease on 22 January 2022. The reason for this decision was based on a finding that the applicant was able to return to suitable employment as a vocational educator.
On 4 January 2022, iCare advised that a decision had been made to confirm the original decision and matters in dispute dated 13 October 2021. It noted that as the original option of vocational educator is maintained, it was not necessary for a further decision on whether the role of career counsellor was a suitable employment option.
On 14 January 2022, the applicant lodged an Application for Expedited Assessment (Form 1) (Application) claiming weekly benefits where a work capacity decision is in dispute.
On 27 January 2022, the respondent lodged a Reply to the Application.
On 9 February 2022, the applicant lodged an Application to Admit Late Documents (AALD).
PROCEDURE BEFORE THE COMMISSION
On 14 February 2022, I convened a telephone conference to resolve the dispute. The applicant attended the telephone conference, with his solicitor Mr Alister Stewart of Schofield King Lawyers and Mr Ross Goodridge of counsel. The respondent was represented by its solicitor Ms Louise Cotchet of Hall & Wilcox and Mr Stuart Grant of counsel.
During the telephone conference I made an interlocutory decision that the AALD would not be admitted into the proceedings. The reasons for that decision were provided orally to the parties.
The parties were unable to reach a resolution of the dispute and provided oral submissions during the telephone conference. The parties were informed of my intention to determine the dispute following the telephone conference.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours to bring the parties to the dispute to a settlement. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES
The parties agreed, during the telephone conference, that the following issues remained in dispute:
(a) Whether the role of vocational educator is suitable employment within the meaning of s 32A of the 1987 Act, and this is limited to a determination of whether the applicant requires a Certificate IV in Training and Assessment.
(b) What is the amount the applicant is able to earn in the role of a vocational educator?
There was no dispute as to the following matters:
(a) the applicant’s pre-injury average weekly earnings is $1,960 (as indexed);
(b) the applicant has capacity to work in suitable employment seven hours per day, five days per week;
(c) the applicant is in the second entitlement period, having been paid approximately 104 weeks of weekly payments. The Personal Injury Commission (Commission) has jurisdiction to determine the dispute under s 37 of the 1987 Act, and
(d) it is agreed that the role of vocational educator is suitable employment within s 32A of the 1987 Act, save for whether there is a requirement to possess a Certificate IV in Training and Assessment.
EVIDENCE
The following documents were in evidence before me and have been considered in determining this dispute:
(a) Application, and attached documents, and
(b) Reply, and attached documents.
Applicant’s statement
In evidence is a statement prepared by the applicant, dated 13 December 2021 and a copy of his resume also dated 13 December 2021. This evidence confirms the applicant’s education and work experience. It confirms that the applicant has the following education:
(a) Transition Advisor Training 2018;
(b) Certificate of Careers Counselling 2007;
(c) Diploma of Secondary Education 2007;
(d) Bachelor of Sports Science 1994;
(e) Police Prosecutor Course 1989, and
(f) Bachelor of Policing 1986.
The statement also confirms that the applicant worked as a careers and transition advisor for the Department of Education from 2009 for over 10 years. It further confirms that prior to working with the Department of Education, the applicant was employed as a field services officer from 2006-2009, a sales person from 2005-2007, NSW TAFE teacher – fishing industry recreational services from 2001-2011, and, amongst other roles a fisheries officer/events coordinator/investigator from 1996-2006.
Medical evidence
The applicant’s treating general practitioner, Dr Howard Nguyen, certified the applicant fit for seven hours per day, five days per week from 18 August 2021.
On 12 July 2021, Dr Nguyen, approved the vocational option of a vocational educator.
Vocational assessment material
Rehabilitation Services by Altius
In evidence are several vocational assessment documents prepared by Rehabilitation Services by Altius, qualified by the respondent.
In the job seeking document, dated 13 May 2020, the applicant’s return to work strategy plan is recorded. It records that the applicant completed several modules for job seeking and can independently job seek. It also records that the role of vocational educator is a return to work vocational option.
In the vocational assessment report, dated 9 April 2020, is a record of the applicant’s education background and employment background. It identifies the role of “Vocational Education Teachers (Fishery and Outdoor Recreation)” as the vocational return to work option 2. It records, the inherent requirements of this role, including on the job training/qualification requirements:
“A relevant tertiary qualification or at least five years applicable experience (ANZSCO Skill Level 1). In some instances, particular experience and/or on-the-job training maybe required. Registration may be required. relevant formal qualification and extensive practical or industry experience in your area of expertise is needed to become a Vocational Education Teacher. You also need to complete a Certificate IV in Training and Assessment. Bannura has approximately 10 years of part time experience working directly as a TAFE Teacher for Fishery and Outdoor Recreation Courses. He has direct experience as a Fishery Officer, Police Officer and Careers Counsellor combined experience of 30 years. Additionally, he holds a Transition Advisor Training Course, completed in 2018 providing him with the necessary qualifications to be deemed appropriate when applying for this role. There is likely to be provision of on the job training upon commencing with a new employer with regards to company specific policies and procedures.” (emphasis added)
The report identifies that the role of vocational educator is suitable, having regard to the applicant’s employment background and skillset.
The labour market analysis report, dated 26 July 2021, provides an analysis of the availability of the role of vocational education (fisheries and outdoor recreation) in the open labour market. It repeats the terms set out above at [22] as the “on the job training”. It also records that the role is suitable having regard to the applicant’s employment background and skillset. Three prospective employers were contacted and each advised of the required qualifications: Employer 1, TAFE NSW (Teacher of Outdoor Recreation and Leadership); Employer 2 – Wilderness Escape Adventures (Outdoor Education Instructor); Employer 3 – TAFE NSW (Teacher – Sport, Recreation and Fitness).
In respect of qualifications, Employer 1 – TAFE NSW advised that:
“… following qualifications were required to be deemed suitable for the role; Recognised degree or diploma in outdoor recreation or an equivalent degree/diploma; a Certificate IV in training/assessment as well as a Diploma in education. Further it was advised a minimum of three years working within the outdoor recreation industry was required. Rehabilitation Services by Altius reiterated Mr Bannura's qualification including Diploma in Education, Bachelor of Sports Science, as well as his extensive experience with NSW TAFE, encompassing approximately 10 years. In considering the above, Employer 1 confirmed Mr Bannura's suitability for the role.” (emphasis added)
In respect of qualifications, Employer 2 – Wilderness Escape Adventures advised that:
“… the following qualifications were required to be deemed suitable for the role; Senior First Aid Certificate, Australian or New Zealand residency, Child Safe Environments, Responding to Abuse and Neglect; (training can be provided), and Working with Children Clearance. Rehabilitation Services by Altius noted Mr Bannura's qualification including Current Working with Children's Check: Diploma in Education; Bachelor of Sports Science as well as his extensive experience with NSW TAFE and NSW Department of Education. In considering the above, Employer 2 confirmed his suitability for the role.” (emphasis added)
In respect of qualifications, Employer 3 – TAFE NSW advised that:
“… the following qualifications were required to be deemed suitable for the role; Certificate IV in Sport and Recreation or equivalent/relevant qualification as a minimum, Certificate IV in Training and Assessment (TAE40116) or equivalent. Employer 3 further advised a minimum three years or equivalent, relevant industry experience was required, as was demonstrated experience in fitness with knowledge of industry trends. Rehabilitation Services by Altius reiterated Mr Bannura's qualification including Diploma in Education, Bachelor of Sports Science as well as his extensive experience with NSW TAFE. In considering the above, Employer 3 confirmed his suitability for the role.” (emphasis added)
Good Rehab Pty Ltd
In evidence is a Vocational Assessment Report of Good Rehab Pty Ltd, dated 20 December 2021, qualified by the applicant. It provides an opinion on whether certain roles are suitable. In respect of the vocational education role, the report records:
“The role Vocational Education Teachers (Fishery and Outdoor) is not a suitable option for [the applicant] as he does not have the relevant qualification (Certificate IV in Training and Assessment) to be deemed a suitable candidate for the role.” (emphasis added)
The report also records the qualifications required for the role of Vocational Education Teacher (Fishery and Outdoor Recreation):
“1. Certificate IV in Training and Assessment
2. Trade qualifications dependant on the specific or relevant industry you are working in
3. Bachelor or Postgraduate degree in specific field” (emphasis added)
The report further records the qualifications held by the applicant:
“1. Transition Advisor Training Course, 2018
3. Certificate of Careers Counselling 2007
4. Diploma of Secondary Education 1995
5. Bachelor of Sport Science 1994
6. Police Prosecutor Course 1989”
It notes that Rehabilitation Services found the role of Vocational Education Teacher (VET) to be a suitable role based on the applicant’s previous experience as a TAFE Teacher. However, to gain employment as a VET a candidate will need to complete a Certificate IV in Training and Assessment.
It adds that Rehabilitation Services narrowed the scope of the role VET in the “Fishing and Outdoor Recreation space”. The applicant has not completed a relevant trade (or higher certification) in Leisure and Lifestyle, which would be deemed suitable for the position.
Good Rehab Pty Ltd contacted three prospective employers for VET roles: VET Sydney – Vocational Education Teacher; Southern Cross School of Business – Vet Trainer, and Assessor and Plenty Training – Vocational Education Teacher. All prospective employers advised that despite the applicant’s previous experience he would need to undertake a Certificate IV in Training and Assessment to be considered a suitable candidate for the role.
SUBMISSIONS AND DISCUSSION
The applicant and respondent provided oral submissions during the telephone conference which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.
Whether the role of vocational educator is suitable employment within the meaning of s 32A of the 1987 Act, and this is limited to a determination of whether the applicant requires a Certificate IV in Training and Assessment.
Submissions
The applicant submits that the role of vocational educator is not suitable employment within the meaning of s 32A of the 1987 Act, for reason that he does not have the required Certificate IV in Training and Assessment. The applicant refers to the Vocational Assessment Report of Good Rehab Pty Ltd dated 20 December 2021, which sets out the requirements of the role and records that the role of VET (Fishery and Outdoor) is not a suitable option as the applicant does not have the relevant qualification of a Certificate IV in Training and Assessment. While the applicant holds a bachelor degree, he does not hold a Certificate IV or relevant trade experience in the relevant industry for the role. Without those qualifications, the applicant submits that, he does not have the skill set. The applicant relies on the Good Rehab Pty Ltd Vocational Assessment report.
The applicant contends that the proper reading of all the evidence is that the qualification of Certificate IV in Training and Assessment is a requirement of the role not something that is preferred. The evidence says it is required. The applicant accepts that the respondent’s vocational evidence states that the role is suitable, but asserts that that cannot be conflated with a broad indication that the role is suitable without overcoming what is established a required qualification. The applicant submits that the evidence provides that the role is not suitable in the absence of the Certificate IV. The respondent’s evidence does not provide any reasoning why, despite the requirement of a Certificate IV, the role is suitable employment. While someone may be able to obtain employment in absence of the Certificate IV, on a proper reading of the evidence that certification is required for it to be considered suitable employment.
The respondent submits that the role of vocational educator is suitable employment. The respondent refers to the applicant’s resume which sets out the applicant’s background, skills, education, qualifications and employment history. The respondent contends that the applicant has extensive qualifications in the workplace and the various jobs held by the applicant provide transferrable skills. The applicant has a speciality in regard to fishing and understands how to run his own business.
The respondent contends that the vocational assessment report of Rehabilitation Services provides that the applicant and also the nominated treating doctor approved of the role of vocational educator.
The respondent refers to the requirements of the vocational educator set out in its vocational assessment report. The respondent contends that no two jobs are the same and most jobs have on the job training, which overcome the issue of necessary skill set. The respondent further refers to the report and submits that there is a requirement of relevant tertiary education or five years of experience and relevant formal qualifications. The respondent also refers to the record of a requirement of a Certificate IV in Training and Assessment, but states that each of the three prospective employers said the applicant was suited to the role. The respondent contends that this was because of the applicant’s extensive demonstrated experience and qualifications, and on the job training, that the role is suitable. The respondent submits that a reading of the vocational assessment report indicates that the applicant’s extensive experience and training overcome the need for a Certificate IV.
The respondent submits that the applicant should not be precluded from the role of vocational educator because of the absence of a Certificate IV in Training and Assessment. The respondent adds that the applicant’s vocational evidence has not tested in the open labour market whether the applicant would be suitable for the role of vocational educator and there is no contradictory evidence to the respondent’s open labour market evidence.
Consideration
The present dispute concerns the applicant’s work capacity and ongoing payments of weekly compensation. The dispute is governed by the Commission’s expedited assessment procedure under Pt 5 of the 1998 Act. In particular, s 297(1) of the 1998 Act provides that an interim payment direction may be issued for the payment of weekly payments of compensation.
A dispute concerning a worker’s work capacity requires consideration of whether the worker has “current work capacity” or “no current work capacity” for “suitable employment” within the meaning of those phrases under the 1987 Act. The meaning of these phrases has been interpreted and applied in many decisions, and, in particular, Wollongong Nursing Home Pty Ltd v Dewar[1].
[1] [2014] NSWCCPD 55.
“Current work capacity” and “no current work capacity” is defined under cl 9 of Sch 3 of the 1987 Act as follows:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
“Suitable employment” is defined under s 32A of the 1987 Act as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
Suitable employment
It is not disputed that the applicant has capacity for suitable employment seven hours per day, five days per week. What is disputed is whether the role of vocational educator is “suitable employment” within the meaning of that phrase under s 32A of the 1987 Act, in circumstances where the applicant does not possess a Certificate IV in Training and Assessment. It is accepted that, if I find that that the role of vocational educator is not suitable employment an award for weekly payments of compensation would be made under s 37 of the 1987 Act and the Work Capacity Decision would be set aside. The respondent did not submit that there were any other suitable employment options available.
Nature of the worker’s incapacity
It is not disputed that the applicant has capacity to undertake the role of vocational educator. The evidence, in particular that of Dr Nguyen, supports that the applicant has physical capacity to undertake this role.
Age, education, skills and work experience
The consideration of the applicant’s age, education, skills and work experience is critical to the outcome of this dispute. In this regard, the evidence supports that the applicant’s age is not a barrier to his return to suitable employment. It is accepted that the applicant has extensive education and skills relevant to the teaching industry. It is also accepted that the applicant has extensive work experience in a variety of areas, including work as a careers and transition advisor in a high school from 2009 for over 10 years and as a part-time TAFE teacher in the fishing industry and recreational services for over eight years (until around 2011). However, and for the reasons that follow, the evidence does not support that the applicant has the required education to undertake the role of vocational educator. It is also arguable for this reason the applicant does not possess the necessary skills to undertake the role of vocational educator.
It is accepted that the applicant does not possess a Certificate IV in Training and Assessment. What is disputed is whether the absence of a Certificate IV in Training and Assessment would preclude the role of vocational educator as being defined as “suitable employment” within the meaning of s 32A of the 1987 Act.
The vocational evidence indicates that a requirement of the role of vocational educator is a Certificate IV in Training and Assessment. This is demonstrated by the vocational reports of Rehabilitation Services by Altius and Good Rehab Pty Ltd (set out above at [22]-[27], [28]-[29], [33]). The overwhelming evidence is that a Certificate IV is required for the role. Indeed, in the vocational assessment evidence, a Certificate IV is listed as a qualification “required” to be deemed suitable for the role.
I do not accept the respondent’s submission that the absence of the Certificate IV in Training and Assessment would not be a barrier to the applicant undertaking the role of vocational educator because its vocational evidence indicates that the applicant is suited to role. The evidence makes clear, as the applicant submits, that a Certificate IV is a requirement of the role. The evidence does not demonstrate that it is optional, desirable or preferrable. The evidence, read as a whole, clearly demonstrates that the Certificate IV is required.
That the respondent’s vocational assessment evidence indicates that three prospective employers suggested that the applicant was suited to the role, does not mean that the role necessarily falls within the meaning of suitable employment in s 32A of the 1987 Act. The determination of whether a role falls within the meaning of suitable employment in s 32A is a matter for the Commission. It is a question to be determined having regard to all of the available evidence.
While the respondent’s vocational assessment report provides evidence from three prospective employers that the applicant would be suited to the role, it does not expressly state that the applicant would be suited to the role even in the absence of a Certificate IV in Training and Assessment. Indeed, it is not clear whether these prospective employers were informed that the applicant did not have that particular qualification, and, if so, there is no evidence that explains whether this would impact whether he was considered suitable for the role. In this regard, on the state of the evidence, I am not able to reconcile the respondent’s vocational assessment evidence that the role is suitable or the apparent conclusions of the prospective employers that the applicant is a suitable candidate when the evidence indicates that the applicant does not possess an inherent requirement of the role, namely a Certificate IV.
I prefer the applicant’s vocational assessment evidence which, consistent with the respondent’s vocational assessment evidence, indicates that a Certificate IV in Training and Assessment is required for the role of vocational educator. It also provides that three prospective employers for VET roles were contacted. In the applicant’s vocational assessment evidence it is recorded that, each prospective employer contacted advised that despite the applicant’s previous experience he would need to undertake a Certificate IV in Training and Assessment to be considered a suitable candidate for the role.
I also do not accept the respondent’s submission that the role of vocational educator is suitable employment because of the applicant’s extensive experience and qualifications. Nor do I accept that because of his experience the absence of the Certificate IV in Training and Assessment is not an impediment to the role being suitable employment. That the applicant worked as a part-time TAFE teacher over 10 years ago does not necessarily mean that a similar role would now be suitable. Overtime the inherent requirements of roles change, including the qualifications required to be considered a suitable candidate for a role. Further, that the applicant may be able to undertake the role because of his extensive experience does not mean that it is suitable employment within the meaning of s 32A of the 1987 Act. The evidence indicates that the applicant requires certain qualifications to undertake the role, and it is clear that he does not possess all of those qualifications.
I do not accept the respondent’s submission that on the job training would overcome the issue of the absence of any necessary skill set. The respondent did not identify what on the job training would be provided to the applicant to overcome any absence of skill or a Certificate IV in Training and Assessment. Indeed, the applicant did not identify any evidence to indicate that prospective employers would provide such training or what training or that such training would address the absence of a Certificate IV. Further, there is no evidence to indicate that the respondent has taken steps to ensure the applicant has the necessary training and qualifications for the role.
I accept that the applicant and nominated treating doctor approved the role of vocational educator. However, this does not mean that the applicant has the required education and skills for the role to be considered suitable employment within the meaning of s 32A of the 1987 Act.
In view of the above, the absence of the applicant holding the required education or qualifications in the nature of a Certificate IV in Training and Assessment and associated skills are compelling factors which support that the role of vocational educator is not suitable employment within the meaning of s 32A of the 1987 Act.
Any plan or document prepared as part of the return to work planning process
The return to work planning documents indicate that the role of vocational educator was an identified vocational goal. The return to work evidence support the applicant’s return to work in suitable employment.
Any occupational rehabilitation services
The evidence indicates that the applicant can independently job seek. There is no evidence to suggest the applicant requires any occupational rehabilitation service to undertake suitable employment or the role of vocational educator.
CONCLUSION
For the above reasons, I am not satisfied, having regard to the totality of factors under s 32A of the 1987 Act, that the role of vocational educator is suitable employment. The evidence demonstrates that a Certificate IV in Training and Assessment is an inherent requirement of the role. In the absence of that relevant education or qualification the applicant does not have the necessary skill set for the role. It follows that I am unable to find that the role of vocational educator is suitable employment for the applicant within the meaning of s 32A of the 1987 Act. As a result, it is not necessary that I determine the applicant’s ability to earn in the role of vocational educator.
As the respondent did not identify any alternative suitable employment options, other than the role of vocational educator which I have found is not suitable employment, I am unable to find that the applicant has current work capacity for suitable employment. As a result, the work capacity decision dated 13 October 2021 is set aside.
Accordingly, an award for weekly payments of compensation will be made as follows:
(a) The respondent to pay the applicant weekly compensation, pursuant to s 37 of the 1987Act, at the rate of $1,568 per week (as indexed periodically), for the period 22 January 2022 and continuing.
(b) The respondent is to have credit for all payments of weekly compensation made to date, because of the application of s 298B of the 1998 Act.
0
0
0