Burrows and Australian Postal Corporation - [2002] AATA 447

DECISION AND REASONS FOR DECISION [2002] AATA 447

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/51
GENERAL ADMINISTRATIVE DIVISION ) No A2001/141

Re      GRAHAM BURROWS
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent
DECISION

Tribunal Mr G A Mowbray

Date16 May 2002
PlaceCanberra
DecisionThe Tribunal:

Affirms the decision under review in matter A2001/51, being the Respondent's decision of 5 December 2000.
Sets aside the decision under review in matter A2001/141, being the Respondent's decision of 22 March 2001.

Remits matter A2001/141 to the Respondent for reconsideration with a direction to calculate the compensation, if any, payable to the Applicant from 1993 to the present under section 19, 20, 21 or 21A of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in accordance with the findings made by the Tribunal in its reasons for decision.

Pursuant to section 67(9) of the Act orders the Respondent to pay the Applicant's costs in matter A2001/141 as agreed or taxed.
..............................................
Member
CATCHWORDS
COMPENSATION – suitable employment – whether voluntary termination of employment – whether employee received an offer of suitable employment on the condition that the employee completed a reasonable rehabilitation or vocational retraining program – whether employee failed to fulfil that condition – whether failure was reasonable
COMPENSATION – calculation of incapacity benefits – determination of amount employee is able to earn in suitable employment – whether actual earnings in employment to be taken into account

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 19(3), 19(4)(a), 19(4)(d), 19(4)(f)

Comcare v Chenhall (1996) 69 FCR 201; 139 ALR 380; 24 AAR 106; 44 ALD 25
Pulitano v Telstra Corp Ltd (1998) 50 ALD 1015
Comcare v Line [2002] FCA 553
Re Sumner and Comcare (AAT 13548, 17 December 1998)
Re Jones and Telstra Corp Ltd [1999] AATA 679
Re Stephenson and Telstra Corp Ltd [2001] AATA 343
Re O'Shea and Comcare (1993) 18 AAR 430
Freightcorp v Duncan [2000] NSWCA 309
Re Shanahan and Australian Postal Corporation (1995) 36 ALD 613
Woodbridge v Comcare (1994) 20 AAR 196
Slater v Telstra Corp Ltd [2001] FCA 1417

REASONS FOR DECISION

12 June 2002 Mr G A Mowbray

History of the Applications

There are two applications before the Tribunal. A2001/51 relates to a claim for permanent impairment, and A2001/141 relates to a claim for incapacity payments.
On 24 May 1988, Graham Burrows (the Applicant) made a claim for compensation in relation to a left knee strain sustained on 28 April 1988 when his motorbike slid in the mud outside a house on his delivery route. A determination that the Australia Postal Corporation (the Respondent, referred to in these reasons as Australia Post) was liable for left knee injury was made in June 1988. Mr Burrows ceased work with Australia Post in February 1993 after accepting a redundancy package. On 7 December 1999 Mr Burrows, through his solicitors, requested a compensation claim form in relation to his knee injury.
On or about 18 April 2000 Mr Burrows completed a claim for permanent injury.…

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: [2002] AATA 447
Decision Date: 16 May 2002

CaseChat Overview and Summary

The case of Burrows and Australian Postal Corporation was heard in the Administrative Appeals Tribunal, focusing on the determination of compensation for Mr. Burrows following his injury and subsequent employment termination. The central issues were whether Mr. Burrows had voluntarily terminated his employment, whether he had received an offer of suitable employment contingent on completing a rehabilitation or retraining program, and if his failure to fulfill the condition was reasonable. Additionally, the court had to determine the appropriate calculation of incapacity benefits, particularly whether Mr. Burrows' actual earnings should be factored into the assessment.

The court examined the definition of suitable employment under the Safety, Rehabilitation and Compensation Act 1988, considering whether Mr. Burrows' employment termination was voluntary. The Tribunal reviewed Mr. Burrows' evidence and Australia Post's submissions, concluding that while Mr. Burrows did not actively seek voluntary redundancy, he accepted the offer of voluntary employment redundancy (VER) given by Australia Post. The court found that Mr. Burrows' acceptance of the VER was voluntary, though he felt pressured due to his injury and limited options. The court also determined that the offer of suitable employment was contingent on completing a rehabilitation program, which Mr. Burrows did not pursue, and that his failure to do so was not unreasonable given the circumstances.

The reasoning concluded that Mr. Burrows' departure from Australia Post was voluntary, and hence, the definition of suitable employment under section 4(1)(b) of the Act applied. The Tribunal set aside the decision regarding incapacity payments and remitted the matter to Australia Post for reconsideration based on the findings. The court ordered Australia Post to pay Mr. Burrows' costs as agreed or taxed.

Orders

Orders of the court

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Background

Background to the litigation

The hearing for both these matters was held on 9 and 10 May 2002. Mr Burrows was represented by Mr Alan Anforth of counsel instructed by Capital Lawyers, and Australia Post was represented by Mr Brian Skinner of counsel instructed by the Australian Government Solicitor. Oral reasons for decision were given on 16 May 2002, affirming the decision under review in matter A2001/51 and setting aside the decision under review in matter A2001/141 and remitting that matter to Australia Post for reconsideration with a direction. On 17 May 2002 the Tribunal received a request for written reasons from Australia Post's solicitor pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.Background Mr Burrows was born on 23 June 1965 in the Australian Capital Territory. He was educated to year 10 level and left school at age 16. Immediately after finishing school he worked as a retail sales assistant for approximately 12 months before working as a labourer for about three years in various positions around Canberra. He commenced employment with Australia Post in 1984 as a telegram boy. In that employment he was promoted until he attained the position of Senior Postal Delivery Officer. On 25 June 1988 he was married to Karen Burrows and has two children from that marriage. In his written evidence Mr Burrows described what happened on 28 April 1988 "I was riding a motorcycle in the course of my employment as a postal delivery officer in Swinger Hill, ACT when the said motorcycle slid in some mud, requiring me to use my left leg as a stabiliser to ensure I did not fall off the bike. As a result, I badly twisted my knee and I felt immediate pain. I finished the remaining couple of houses on the run and returned to the Depot before going home early.The next morning my knee was very sore and swollen and so I went to see Dr Stevens who certified me unfit for work for a few days. After the accident I was unable to work as a post deliverer." Mr Burrows continued working for Australia Post in other duties until February 1993. Over the approximately five years from April 1988, the time of the accident, until his cessation of employment in February 1993 he had a considerable amount of time off work due to his knee injury. This included time off for a number of surgical operations and arthroscopic examinations. After he left Australia Post, Mr Burrows worked in a variety of positions for periods of about 6 to 12 months each, including work as a taxi driver, an administrative clerk, a real estate agent and installing roof insulation. At the time of the hearing he had been self-employed in a gardening and landscaping business for approximately six years.The permanent impairment claim At the commencement of the second day of hearing on 10 May 2002, Mr Anforth for Mr Burrows advised the Tribunal that Mr Burrows would not be further pursuing the permanent impairment claim. It was to be abandoned. The Tribunal therefore will affirm the reviewable decision of 5 December 2000 in matter A2001/51.The incapacity payments claim - Issues

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The two sets of T-documents were also inadequate – some documents were missing, and the index at the beginning of the documents is in many respects incomprehensible. More care needs to be taken in relation to this. At the hearing I also referred Applicant's counsel to problems with duplication and inadequate care in relation to documents provided by the Applicant.Conclusions In summary my conclusions are as follows The reviewable decision of 5 December 2000 in matter A2001/51 is affirmed. The reviewable decision of 22 March 2001 in matter number 2001/141 is set aside and the matter remitted to the Respondent with the direction that the Respondent calculate the compensation payable, if any, for the years from 1993 to the present under sections 19, 20, 21 or 21A of the Act on the basis of the findings set out in these reasons for decision. Pursuant to section 67(9) of the Act the Respondent is ordered to pay the Applicant's costs as agreed or taxed in matter A2001/141.I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A MowbraySigned: ..................................................................................... AssociateDate/s of Hearing 10-11 May 2002 Date of Decision 16 May 2002Date of Written Reasons 12 June 2002Counsel for the Applicant Mr Alan Anforth Solicitor for the Applicant Mr Daniel Steiner (Capital Lawyers) Counsel for the Respondent Mr Brian Skinner Solicitor for the Respondent Ms Sadie Hamer (Australian Govt Solicitor)

Ratio Decidendi

Legal Principle Established

Oral evidence was received from Mr Graham Burrows, his wife Ms Karen Burrows and Mr Graham Luck, currently Australia Post's Human Resources Adviser Southern Region situated at the Canberra Mail Exchange.Consideration of Issues and Findings(1) What amounted to suitable employment for Mr Burrows? This is important in determining a claimant's ability to earn for the purposes of section 19. The definition of suitable employment is set out in section 4(1) of the Act (see paragraph 17 of these reasons). The first issue is whether Mr Burrows' case falls within paragraph (a) of the definition, which applies to employees who do not voluntarily terminate their employment with the Commonwealth or a licensed corporation, or paragraph (b) which catches other cases. If a person falls within paragraph (a), account can only be taken of employment with the Commonwealth or a licensed corporation in determining what was suitable employment. Paragraph (b) takes account of employment in the general labour market and self-employment. Therefore the question for the Tribunal is whether Mr Burrows' departure from Australia Post was voluntary. That is, did he terminate his employment subsequent to his injury? Exhibit R8 and Set 1 T60 are the most relevant documents Mr Burrows gave both oral and written evidence. His evidence was he was told, probably by Mr Graham Luck, that he was excess staff and not needed. The only option was a VER as he had rejected a night sorting job at Tuggeranong. About a fortnight later he received a written letter. He might have had a discussion with Mr Luck about a payout. He figured at this stage that he could not go back to his motorbike and there were no other avenues providing retraining and suitable employment. He was resented by staff for taking their overtime and by management for not doing his full duties. He never asked to be made redundant, it was offered to him by Australia Post. He would have preferred to return to normal duties but was forced into a VER. He was told that he should write the letter of 4 January 1993 if he wanted a VER. A VER would only be offered if he wrote such a letter. He was told by Mr Luck to write that there was a permanent position of PSO available, even though he did not know whether this was true. Mr Burrows acknowledged in cross-examination that he accepted the offer of his own free will. There was no coercion by Australia Post, but he felt that he had no choice although he could have ignored the offer. Nevertheless he still insisted that the initiator of the VER was Australia Post, not himself. In re-examination, Mr Burrows said that he thought that if he did not take the VER he would have been fired. But this belief resulted from hearsay from what other postmen had told him – no one in authority at Australia Post had suggested this. In her oral evidence, Mr Burrows' wife Karen stated that her husband had not applied for the VER but had been offered it. He had told her this. The alternative was night sorting. She could not recall any discussion with her husband about whether to take a VER. That was a matter for her husband.