Colin Dunstan and Comcare
[2014] AATA 208
[2014] AATA 208
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1378
Re
Colin Dunstan
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 10 April 2014 Place Canberra The decision under review is affirmed.
............................[sgd]............................................
Mr S. Webb, Member
COMPENSATION – incapacity for work – amount able to earn - normal weekly earnings – suspension from duty without pay – incarceration pending trial – deemed leave of absence without pay – continuity of employment - reduction of NWE - hardship payments to be taken into account as earnings – lump sum annual performance pay – component included in superannuation salary – no effect on ongoing earnings – lump sum productivity pay rise after termination of employment not payable – decision affirmed
Public Service Act 1999 (Cth) s 28
Public Service Act 1922 (Cth) ss 7, 29D, 63B, 63C, 63R, 82AH
Safety, Rehabilitation and Compensation Act 1988(Cth) ss 8, 19,
Public Service Regulations 1999 r 3.10
ACT v Comcare & Anor [2012] FCA 67
Comcare v Burgess (2007) 96 ALD 775
Comcare v Dunstan [2014] FCAFC 21
Comcare v Simmons [2014] FCAFC 4
Dunstan v Farr [1999] FCA 1551
Dunstan v Orr [2008] FCA 31
John Holland Pty Ltd v Robertson [2010] FCAFC 88
R v Dunstan [2000] ACTSC 35
Re Basyoni and Comcare [2011] AATA 207
Re Dunstan and Comcare [2013] AATA 402
Re Dunstan and Comcare [2012] AATA 567
Re Frew and Comcare [2011] AATA 597
Re KCZH and Comcare [2009] AATA 861
REASONS FOR DECISION
Mr S. Webb, Member
10 April 2014
Colin Dunstan was injured in his previous employment by the Australian Taxation Office (ATO). He experienced incapacity for work as a result of the injury and claimed compensation. The circumstances surrounding this claim are complicated by Mr Dunstan being suspended from his employment and, subsequently, being charged and convicted of a criminal offence, for which he was sentenced to a period of imprisonment. Mr Dunstan’s claims in respect of compensation for incapacity surround, and to some extent overlap with, periods in which he was incarcerated. The substance but not the quantum of Mr Dunstan’s entitlement to such compensation was determined by a differently constituted Tribunal in Re Dunstan and Comcare [2012] AATA 567 (the 2012 decision).
In this decision, the Tribunal remitted to Comcare determination of the quantum of Mr Dunstan’s entitlement to weekly compensation for incapacity during specific periods –
(a)11 to 16 July 1991;
(b)3 to 10 April 1992;
(c)1 November 1998 to 25 May 1999; and
(d)3 January 2008 to 15 December 2012.
Addressing the remittal, Comcare determined Mr Dunstan’s gross entitlement to weekly compensation for incapacity is $426,760.60, subject to deduction of amounts due to Centrelink under the Social Security Act 1991 totalling $133,516.98, and an interim award of weekly compensation made under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in the amount of $33,895.40[1].
[1] T15.
Mr Dunstan did not agree with this determination and requested reconsideration. In the result, Comcare set aside the determination and decided that Mr Dunstan is entitled to gross weekly compensation for incapacity totalling $415,718.65, subject to deduction of amounts due to Centrelink and the interim compensation payment[2].
[2] T22
Mr Dunstan applied for review. The proceedings were delayed by related proceedings addressing issues relating to superannuation in the calculation of Mr Dunstan’s weekly compensation for incapacity[3]. Comcare’s appeal against the Tribunal’s decision was dismissed by a Full Court of the Federal Court – Comcare v Dunstan [2014] FCAFC 21. In consequence of this, Mr Dunstan’s weekly compensation for incapacity is to be determined under s 19 of the SRC Act.
[3] Re Dunstan and Comcare [2013] AATA 402.
Background
For present purposes it is not necessary to set out the full history of Mr Dunstan’s case. This was expansively traversed in the Tribunal’s 2012 decision and I will not repeat it.
In brief, Mr Dunstan’s Commonwealth Public Service employment commenced in 1975. He was employed as a Senior Information Technology Officer by the ATO from 1987. As a result of difficulties in a personal and sexual relationship with a co-worker, he became depressed. His employment was a material factor in the onset and progress of this ailment. He first sought medical treatment from a general practitioner in June 1991 and he was referred for psychiatric treatment in July 1991. He claimed compensation. A good deal of disputation and litigation ensued.
In the 2012 decision, the Tribunal found that Mr Dunstan suffered an injury in the form of a ‘disease’ for the purposes of the SRC Act, which caused incapacity for work on 11 July 1991 and continued to affect him thereafter during the periods I must consider.
The following relevant facts arise from the materials, and are agreed.
Up to 21 May 2001, Mr Dunstan was employed by the ATO as an Executive Level 2 officer. The terms and conditions of that employment were set out in the Public Service Act 1922 (the 1922 PS Act) and in the succeeding Public Service Act 1999 (the 1999 PS Act), as well as in certified workplace agreements, namely (for present purposes) the ATO (Executive Level 2) Agreement 1998 (the 1998 Agreement)[4] and the ATO (Executive Level 2) Agreement 2000 (the 2000 Agreement)[5].
[4] Exhibit 1.
[5] Exhibit 2.
The 1998 Agreement and the 2000 Agreement make provision for performance pay for Executive Level 2 officers. Provision is also made in the 2000 Agreement for productivity pay increases in two tranches, each comprising a 2 percent salary increase and a lump sum amount, being 2 percent of ordinary earnings from 6 July 2000. The first tranche commenced after 22 November 2000 and the second tranche commenced after 23 May 2001[6].
[6] Ibid, Attachment A, page 60.
Mr Dunstan was suspended from duty at various times prior to the termination of his employment on 21 May 2001[7]. During the period from 1 November 1998 to 25 May 1999, Mr Dunstan’s status was affected by changing circumstances:
(a)from 1 November 1998 to 3 December 1998 he was suspended from duty without pay under s 63B of the 1922 PS Act, although he was paid part of his salary under s 63C(2)(a)(ii) – a weekly amount based on $60,000 per annum ($1,153.85 per week)[8];
(b)from 4 December 1998 to 18 March 1999 he was incarcerated and deemed to be on leave of absence without pay under s 63R(1)(a), although he was paid part of his salary under s 63R(2);
(c)from 19 March 1999 to 8 April 1999, he was released on bail and suspended from duty under s 63B, although he was paid part of his salary under s 63C(2)(a)(ii) until 31 March 1999, but not thereafter;
(d)from 9 April 1999 to 25 May 1999 he was incarcerated and deemed to be on leave of absence without pay under s 63R(1)(a).
[7] T18 folio 224; Dunstan v Farr [1999] FCA 1551 at [21] to [24].
[8] T18 folio 222.
Mr Dunstan was again released on bail on 7 July 1999 and this continued until his trial.
Mr Dunstan was tried on 11 charges relating to posting articles containing explosive devices. He was taken into custody when the trial concluded on 3 December 1999.
On 26 April 2000, Mr Dunstan was convicted and sentenced to a term of imprisonment, commencing on 26 May 1999[9].
[9] R v Dunstan [2000] ACTSC 35.
Mr Dunstan’s ATO employment was terminated on 21 May 2001.
On 2 January 2008, Mr Dunstan was released on parole.
At all relevant times that I must consider, Mr Dunstan was totally incapacitated for work by his compensable injury, and he was not able to earn any amount in suitable employment.
Salary
Mr Dunstan maintains that his annual salary on and following 1 November 1998 was $77,297 – base salary of $73,616 plus five percent performance pay.
At that time, Mr Dunstan was employed at the Executive Level 2 classification and remunerated at the Pay Zone 1 level. On and from 30 April 1998, his annual salary was $73,616[10]. This rate continued to apply until 13 April 2000 when a four percent pay rise came into effect, whereupon his annual salary increased to $76,561[11].
[10] T12 folio 171.
[11] Exhibit 2, Attachment A.
The performance pay provisions of the 1998 and 2000 Agreements allow for payment of a lump sum after the end of the relevant financial year, being at least five percent of base pay, subject to certain conditions. There is a question whether Mr Dunstan qualified for performance pay to which I will return.
Information provided by the ATO suggests that Mr Dunstan’s annual salary for superannuation purposes in 1998 and 1999 was $77,297, being comprised of his base salary of $73,616 and the five percent ‘at risk’ component of performance pay. As will appear, it does not follow that this amount was his actual salary as on 1 November 1998 – this, too, is a matter to which I will return, below.
Issues
I was informed at the outset of the hearing that there is no controversy between the parties in respect of Comcare’s determination of weekly compensation for 11 to 16 July 1991 and 3 to 10 April 1992. Specifically, Mr Dunstan’s normal weekly earnings amount (NWE) for the purposes of s 8 and s 19 of the SRC Act is $926.08 as of 11 July 1991 (based an annual salary of $48,156) and $1,026.98 as of 3 April 1992 (based on annual salary of $53,403). I will proceed on the basis that these amounts are correct.
As regards the remaining two periods I must consider, it is necessary to determine the amount of weekly compensation for incapacity that Mr Dunstan is entitled to. This requires an assessment of the amount of his NWE, as adjusted from time to time under the provisions of s 8 of the SRC Act. It also requires an assessment of his weekly AE amount for the purposes of s 19(2) – the amount he actually earned, or that he is deemed able to earn in suitable employment.
Having regard to the contentions and the submissions of the parties, and the applicable legislation, it is necessary to decide the extent to which, if at all, each of the following factors affected Mr Dunstan’s NWE or AE amounts, week by week -
(a)from 1 November 1998 to 25 May 1999:
(i)suspension from duty under s 63B of the 1922 PS Act;
(ii)deemed leave of absence under s 63R;
(iii)hardship payments under s 63C(2)(a)(ii) and s 63R(2);
(b)from 1 November 1998 to 25 May 1999 and from 3 January 2008 to 15 December 2012:
(i)performance pay; and
(ii)productivity pay.
Suspension, leave of absence and hardship payments
Many of the documents filed by or for Mr Dunstan in these proceedings raise issues about the validity of the decision to suspend him from his former employment. In effect, this raises the prospect that his NWE amount should not be affected in any way by his suspension – the NWE amount should not be reduced during the periods in which he was suspended, but should simply be calculated on the weekly amount of his annual salary at that time.
The validity of Mr Dunstan’s suspension from duty was dealt with and upheld by Besanko J in Dunstan v Orr [2008] FCA 31. I understand that Mr Dunstan has proceedings in the ACT Supreme Court challenging the validity of his suspension from employment, and that judgement is presently reserved.
Mr Crispin, counsel for Mr Dunstan, informed me that he did not intend to press issues relating to the validity of Mr Dunstan’s suspension from duty in these proceedings, or to seek an adjournment until judgement is given. Consequently, whether or not conditions precedent to the operation of sections of the 1922 PS Act governing suspension from duty are made out in Mr Dunstan’s case was not agitated at hearing. That being so, it is not necessary for me to go any further on this point - Besanko J’s judgement in Dunstan v Orr is presently binding.
Mr Crispin relies heavily on Comcare v Burgess[12] as binding authority for the proposition that s 8(10) of the SRC Act has no work to do, and is not engaged, in circumstances where an injured employee of the Commonwealth is suspended from duty. On this basis, and assuming his suspension to be valid, Mr Dunstan asserts that his weekly compensation for incapacity during the periods of suspension should be calculated on his annual salary, and should not be reduced as Comcare contends.
[12] (2007) 96 ALD 775.
Comcare asserts that, during periods when Mr Dunstan was suspended from duty without pay under s 63B, or during which he was deemed to have been on leave of absence without pay under s 63R of the 1922 PS Act, his NWE amount must be reduced to zero under s 8(10)(a) of the SRC Act. Furthermore, during periods when Mr Dunstan was paid hardship payments while suspended from duty or while deemed on leave of absence, his NWE should be reduced to the quantum of those payments, week by week.
In making these submissions, Mr Dubé, counsel for Comcare, pointed to doubts expressed about the correctness of Greenwood J’s judgement in Comcare v Burgess in subsequent cases, namely John Holland Pty Ltd v Robertson[13] and ACT v Comcare & Anor[14], that are consistent, in his submission, with the construction of s 8(10) and the meaning of ‘employment’ adopted in Comcare v Simmons[15].
[13] [2010] FCAFC 88.
[14] [2012] FCA 67.
[15] [2014] FCAFC 4.
These submissions require careful consideration of relevant provisions of the 1922 PS Act and of s 8(10) of the SRC Act, which is in the following terms –
(10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a) where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b) where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:
(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.
It is necessary to determine whether s 8(10) of the SRC Act is engaged in Mr Dunstan’s circumstances.
Is s 8(10) engaged?
The answer to this question is Yes.
The circumstances of Mr Dunstan’s suspension from duty are somewhat different than those considered in Comcare v Burgess. Mr Dunstan was suspended from duty under the 1922 PS Act, whereas Ms Burgess was suspended from duties under s 28 of the 1999 PS Act and reg 3.10 of the Public Service Regulations 1999 (the Regulations). There are important differences in these enactments in respect of classes of employees and related terms of employment, including provisions relating to suspension from duty and termination of employment.
The differences are sufficient to raise doubts about whether Comcare v Burgess is on all fours with Mr Dunstan’s case. Even if it is, I am not persuaded that Burgess is binding authority in the manner for which Mr Dunstan contends.
Even though it is quite clear that Ms Burgess’ suspension from duties did not terminate her contract of employment with the Commonwealth, Greenwood J concluded that s 8(10)(a) did not apply. Of this, his Honour said –
26. … Although Ms Burgess continues to be employed by the Commonwealth in the sense that the contract of employment is ‘on foot’ and employment has not been terminated nor ‘ceased’ (see s 8(10)(b)), the continuity of employment contemplated by s 8(10)(a) is continuity of provision of service and receipt of earnings not simply a subsisting employer/employee relationship. A suspension of employment is not an event contemplated by the section as an element of its operation or purpose…
When determining whether s 8(10) is engaged in such circumstances, the more recent case of John Holland Pty Ltd v Robertson is instructive, in which Dowsett J, with whom Spender J agreed, said -
42. I have previously pointed out the difficulty in an approach to s 8(10) which contemplates the possibility that in certain circumstances, it may not be engaged. In my view an injured employee must either continue to be relevantly employed or not. Either s 8(10)(a) or s 8(10)(b) must apply. An alternative approach to the circumstances which arose in Burgess might be to ask whether a suspended employee continues to be employed for the purposes of s 8(10). It may be that if he or she is not performing duties, and not receiving remuneration, he or she is no longer "employed" for the purposes of that section. If suspension does not terminate employment in the relevant sense, then s 8(10)(a) will apply. The decision-maker may then have to enquire as to whether, in the event that the incapacity had not occurred, the employee would have been suspended. Such enquiry would be part of a broader enquiry as to the employee’s earnings had he or she not been incapacitated. If the suspension has the effect of terminating the employee’s "employment" for the purposes of s 8(10), then s 8(10)(b) will apply. The decision-maker will then have to make the enquiries contemplated by ss 8(10)(b)(i) and 8(10)(b)(ii). For present purposes, I need not consider the effect of a suspension upon employment for the purposes of s 8(10). In this case s 8(10)(b) clearly applies.
43. Because of the way in which the questions were framed in Burgess, no consideration was given to the meaning of the terms "employed" and "employment" in s 8(10) or, surprisingly, to the operation of s 8(10)(b). At [26] his Honour assumed that Ms Burgess "continues to be employed by the Commonwealth in the sense that the contract of employment is ‘on foot’ and employment has not been terminated nor ‘ceased’ ... ." His Honour then observed that "... the continuity of employment contemplated by s 8(10)(a) is continuity of provision of service and receipt of earnings not simply a subsisting employer/employee relationship." In my view, if that observation is correct, then the assumption may be invalid, at least for the purposes of s 8(10). The question invites consideration of the meaning of the words "employed" and "employment".
Bennett J declined to address such issues in ACT v Comcare. Nonetheless, her Honour expressly adopted Dowsett J’s reasoning –
38. [Dowsett J] also observed that the question may be to ask whether s 8(10)(b) applied and that if an employee is not performing duties and is not receiving remuneration, that may indicate that the person is no longer employed. However, if suspension does not terminate employment in the relevant sense, then s 8(10)(a) applies.
39. Justice Dowsett cast doubt on the reasoning in Burgess. I have been asked by Comcare to find the decision in Burgess clearly wrong….
40. I do not propose to consider Burgess further. It is sufficient that I accept the reasoning of Dowsett J in John Holland. In particular, I accept that s 8(10) provides for two alternatives only.
On these authorities, s 8(10)(a) or (b) must apply. There is no third option.
If Mr Dunstan’s submission is that I am bound by Comcare v Burgess to find that s 8(10) is not operative in circumstances where an employee is suspended from duties without pay, I reject it. The more recent judgements in John Holland Pty Ltd v Robertson and Act v Comcare, which are binding authorities, stand to the contrary, such that s 8(10) is operative, and an assessment of the particular circumstances and facts is required to determine which of s 8(10)(a) or (b) apply in the particular circumstances at the relevant time.
Does s 8(10)(a) or (b) apply?
There is a temporal element in the calculation of an injured employee’s entitlement to compensation for incapacity which allows for progressive decision-making. The compensation is to be calculated on a weekly basis applying the s 19(2) formulae ‘NWE – AE’. The nexus between the NWE amount each week calculated under s 8 and the person’s weekly AE amount calculated under s 19 is an important context to consider when construing the adjusting provisions in s 8(10)[16]. This requires an assessor to have regard to the actual circumstances of the injured employee, week by week, and it is through this lens that the terms of each paragraph of s 8(10) must be viewed and applied. Thus, in a case such as this, subject only to consideration of the effect of suspension from duty and enforced leave of absence on the continuity of ‘employment’, s 8(10)(a) applies while Mr Dunstan was continuing in Commonwealth employment, up to 21 May 2001, and s 8(10)(b) applies after his Commonwealth employment came to an end.
[16] Comcare v Simmons[2014] FCAFC 4, per Perry J at [74]-[82].
Dowsett J considered the meaning of ‘employment’ in John Holland Pty Ltd v Robertson and, while cautioning against too readily transposing meaning from one section of the SRC Act to another, his Honour’s construction of s 8(10) illuminates what is required –
72. … the entitlement conferred upon each office-holder is in respect of injury suffered whilst performing his or her duties. It is fairly clear that the general intention of the Act is to that effect.
73. … it seems to be more consistent with the purpose of the Act to treat the word "employment", when used in the Act, as describing rather more than a trade, calling or classification of employees. The Act is very much concerned with conditions in which employees work and their terms of engagement, rather than how they may be classified. …
[Emphasis added]
Thus, “employment” in s 8(10), is concerned with the conditions in which the employee works, the terms of engagement of the employee and the employee’s duties at relevant times. Under the construction Greenwood J set out in Burgess’s case, provision of service and receipt of earnings are indicators of the continuity of employment. In ACT v Comcare, for example, Bennett J concluded that Mr Goodwin’s employment continued under the relevant ACT enactment even though he was absent on long service leave, performing no duties but continuing to receive earnings.
Applying these tests requires close consideration of the terms and conditions of the particular employment in each case.
The terms and conditions of Mr Dunstan’s former employment include the legislative provisions governing his engagement as a ‘continuing employee’ under the 1922 PS Act, with all of the rights entitlements and obligations attaching to that classification, including attending for duty and performing the duties of the office he held as a Senior Information Technology Officer Grade B, as well as the provisions governing his suspension from duty.
The power vested in the Secretary under s 63B of the 1922 PS Act to ‘suspend an officer from duty’ is not at large – it is preconditioned by the various factors set out in s 63B(1) to (1C) for example. Where an officer is suspended from duty, s 63B(2) operates to preclude entitlement to payment of salary while the suspension is in force, subject to the operation of s 63B(3), (4), (5) and s 63C.
The conception of ‘duty’ under the 1922 PS Act has two important elements – attending for duty and undertaking the duties of an office. Both elements may be affected by order of suspension from duty. Furthermore, suspension from duty has a temporal element, implying a temporary state of affairs, during which the employee may not attend for duty or undertake the duties of an office, at the end of which further action is to be determined in the context of the employee’s employment. Further action may include, for example, a return to duty in some fashion, or dismissal and the termination of employment.
If an employee is suspended from duty under s 63B, it does not necessarily follow that the employee’s service is also suspended.
The legislative conception of ‘service’ refers to the condition or employment of an employee serving in the Australian Public Service (APS) and providing service to his or her employer, the Commonwealth. ‘Service’ is instrumental for specific legislative purposes relating to terms and conditions of employment, such as in the accrual of employee entitlements to recreation leave and other forms of leave, for example.
The suspension of service for the purposes of the 1922 PS Act occurs only in certain circumstances.
Where an officer is dismissed following a period of suspension from duty, s 63C(10) provides –
(10) Where an officer who has been suspended from duty under section 63B is dismissed from the Service, the period during which the officer is suspended from duty does not count as service for any purpose.
A similar provision is made where an employee is in custody awaiting trial for an offence, s 63R(1) deems that the employee is on leave of absence without pay and that the period of custody “shall not, unless the Board otherwise determines, be regarded as service for any purposes under this Act or any other Act”.
Under these provisions, a period of suspension from duty under s 63B will count as service unless the employee has been dismissed (s 82AH provides for the termination of an officer’s ‘employment’ in certain circumstances), whereas deemed leave of absence without pay under s 63R will not count as service unless the Board determines otherwise.
Even though the overall conception of ‘employment’ under the 1922 PS Act embraces conceptions of duty and service, an employee’s underlying employment may persist even if one or both of these elements is not present. An APS officer’s employment may continue even though the officer is classed as an ‘excess officer’ under s 7(3), or he or she has become an ‘unattached officer’ (see s 29D, for example), or the officer is suspended from duty for a time under s 63B or s 63C, or is deemed to be on leave of absence without pay under s 63R. In each of these cases the officer may not be required, permitted or able to attend for duty or to undertake the duties of an office, and he or she may or may not receive any earnings, week by week, during the period of suspension, but his or her employment will persist under the terms of engagement and the 1922 PS Act unless it is terminated.
This construction of ‘employment’ is reinforced by the provision of discretion under s 63C to direct payment of salary to an officer who is suspended from duty without pay under s 63B in certain circumstances -
63C Removal and variation of suspension
(1) …
(2) Where an officer is suspended from duty under section 63B:
(a) the relevant Secretary may:
(i) …; or
(ii) if the relevant Secretary is satisfied that the officer is suffering or has suffered hardship—subject to any determination under section 82D, direct that the officer be paid the whole or part of the officer’s salary for the whole or part of the period of the officer’s suspension; and
…
A similar discretion is conferred upon the Secretary under s 63R(2) -
(2) Where an officer is imprisoned by reason of having been convicted of an offence or is in custody awaiting trial for an offence, the relevant Secretary or, in the case of an officer referred to in Subdivision B, the Board may, subject to any determination under section 82D, if the relevant Secretary or the Board, as the case may be, is satisfied that the officer is suffering or has suffered hardship, direct, notwithstanding subsection (1), that the officer be paid the whole or part of the officer’s salary for the whole or part of that period of imprisonment or custody.
Under these provisions, it is quite clear that Mr Dunstan’s Commonwealth employment subsisted from 1 November 1998 to 25 May 1999. It was not his ‘employment’ that was suspended by operation of s 63B but his attendance for and performance of ‘duty’. And it was not his ‘employment’ that was affected by his incarceration on 4 December 1998, rather he was then taken to be on leave of absence without pay, whether or not the absence counted as ‘service’.
It is not presently clear whether the periods of Mr Dunstan’s suspension from duty under s 63B are excluded as ‘service’ by operation of s 63C(10). For that to be made out, a proximate relationship between those periods and the termination of his employment would be required. I note that the ATO appears to have treated such periods as “not to count as service”[17]. Mr Dunstan’s suspensions under s 63B are interrupted by periods in which he was held in custody and covered by s 63R. By operation of s 63R(1)(c), the periods in which Mr Dunstan was in custody from 4 December 1998 to 19 March 1999 and from 9 April 1999 to 7 July 1999 do not count as ‘service’.
[17] T18 folio 224.
This notwithstanding, for part of the period when Mr Dunstan was in custody and deemed to be on leave of absence without pay from 4 December 1998 to 19 March 1999 he was paid part of his salary under s 63R(2), and, for part of the period of his suspension from duty from 1 November to 3 December 1998 and from 20 March to 31 March 1999 he was paid part of his salary under s 63C(2)(a)(ii). As the word ‘salary’ implies, and having regard to the manner in which the payments were made, these payments of part-salary are properly regarded as Mr Dunstan’s remuneration or earnings in employment, albeit that Mr Dunstan did not attend for duty and he undertook no duties when he was suspended from duty or held in custody.
I note Mr Dunstan’s argument about earnings being reward for labour, such that the hardship payments he received should not be treated as ‘earnings’. I reject this argument in the particular circumstances. As I have said, part salary payments are properly treated as earnings, albeit that these were paid on hardship grounds, without Mr Dunstan performing any duties. The cases on which he relies[18] are distinguished on the facts.
[18] Re Basyoni and Comcare [2011] AATA 207; Re KCZH and Comcare [2009] AATA 861.
In these circumstances, and in view of the construction of the legislative provisions to which I have referred, I am satisfied that Mr Dunstan’s ‘employment’ for the purposes of s 8(10)(a) of the SRC Act continued under the 1922 PS Act and under the 1998 Agreement from 1 November 1998 to 25 May 1999. In ACT v Comcare, Bennett J said that “[the SRC Act] recognises that an employee may continue to be employed by the Commonwealth regardless of whether the person happens actually to be performing duties or is on leave”[19]. On this basis, even though Mr Dunstan performed no duties and was absent from his employment while suspended from duty, he received earnings for part of the period I must consider and his employment may be taken to have continued for the purposes of s 8(10).
[19] [2012] FCA 67 at [44].
If that is sufficient for the purposes of s 8(10)(a) of the SRC Act, as Comcare contends, it is necessary to assess the amount Mr Dunstan would have earned in his employment from 1 November 1998 to 25 May 1999 had he not been incapacitated by injury. If it is not, s 8(10)(b) applies and it is necessary to assess the amount he would have earned during this period and during the period from 3 January 2008 to 15 December 2012.
Earnings
Of s 8(10)(a), in John Holland Pty Ltd v Robertson, Dowsett J said -
74. Clearly, s 8(10) seeks to limit the compensation payable to an injured employee by reference to his or her notional earnings derived from employment with the same employer had he or she not been injured. Section 8(10)(a) demands a notional enquiry which commences with the employee’s actual current employment. The enquiry is as to his or her earnings in that employment had he or she not been injured. Such enquiry would involve consideration of how, in those circumstances, the employee would have been employed, including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident.[20]
[20] John Holland Pty Ltd v Robertson [2010] FCAFC 88, per Dowsett J at [74].
Engaging in the notional enquiry the section requires, but for the injury occasioning subsequent incapacity for work, the circumstances that led to Mr Dunstan being suspended from duty and that caused him to be held in custody do not fall away. Mr Dunstan’s suspension from duty and his leave of absence while in custody was not predicated upon incapacity resulting from injury. Rather it arose from alleged misconduct[21].
[21] Re Dunstan and Comcare [2012] AATA 567 at [58]-[69].
It follows that, absent incapacity, the weekly amount Mr Dunstan would earn in his employment from 1 November 1998 to 25 May 1999 is the amount that he would earn while suspended from duty without pay and while taken to be on leave of absence without pay - $0 per week, subject to exercise of the discretion to pay him an amount of salary on hardship grounds. Conceivably, without incapacity for work, Mr Dunstan’s circumstances may not have been sufficient to cause the Secretary to pay him part of his salary on hardship grounds while he was suspended from duty – subject to obtaining any requisite approvals, he may have been able to earn income in other employment for example. But this was not agitated and it is entirely conjectural.
There is a related question whether the exercise of discretion to pay Mr Dunstan part salary during periods of suspension from duty or deemed leave of absence is a matter that should be taken into account when assessing the notional weekly amount Mr Dunstan would earn for the purposes of s 8(10)(a). The hypothetical question is to be addressed by consideration of the facts. In view of what Perry J said in Comcare v Simmons at [73] about the irrelevance of personal choices of the employee when applying s 8(10)(b), perhaps the same could be said of choices of the Secretary when applying s 8(10)(a). Furthermore, the discretionary payment of part salary in Mr Dunstan’s circumstances is clearly a relevant matter to take into account when determining his ability to earn or AE amount under s 19(4).
On balance, having regard to the facts, I think the better course is to conclude that the notional amount Mr Dunstan could be expected to earn from 1 November 1998 to 25 May 1999, absent incapacity, is $0 each week, but for the weeks in which discretionary payments of part salary were made. I accept that, had the injury not occurred, the notional amount he could be expected to earn during these weeks, from 1 November 1998 to 31 March 1999, is the amount he was paid in part salary under the applicable terms and conditions of his ongoing employment by the ATO - $1,153.85 per week. If I am wrong to include this amount in the hypothetical exercise required under s 8(10)(a), the notional amount he would earn is $0 per week during this period. This does not assist Mr Dunstan or produce a different overall result.
I note in passing that even had I decided that Mr Dunstan’s ‘employment’ did not continue through these periods for the purposes of s 8(10), such that s 8(10)(b) applied, no different result would be obtained under the notional exercises required by s 8(10)(b)(i) and (ii) of the SRC Act.
Considering s 8(10)(b)(i), if Mr Dunstan’s employment at the date of his injury continued until 25 May 1999, subject only to changes in applicable industrial instruments and rates of pay, the notional amount he would earn each week after 1 November 1998 would be affected by the circumstances of his suspension from duty without pay and his incarceration, technically deemed to be leave of absence without pay. There is no basis to ignore these circumstantial factors when applying s 8(10)(b)(i). Nor is there any basis to disapply the relevant provisions of the 1922 PS Act and the 1998 Agreement, which continued to apply.
In the result, the notional amount Mr Dunstan would likely earn while suspended from duty without pay and while he was held in custody would be $0, unless he was paid part of his salary on hardship grounds under s 63C(2)(a)(ii) or under s 63R(2) of the 1922 PS Act, as happened. Thus, in those weeks from 1 November 1998 to 31 March 1999, the notional amount he would have earned would be $1,153.85 per week if the discretionary payment is included.
Consideration of s 8(10)(b)(ii) produces no different result. The employment in which Mr Dunstan was engaged on 1 November 1998 is that of an Executive Level 2 officer on suspension from duty without pay and, from 4 December 1998, on leave of absence without pay. Assessment of the notional amount Mr Dunstan would earn if either employment was taken to continue requires application of the actual terms of those employments, subject to changes in circumstance.
The result of applying the relevant provisions of the 1922 PS Act and the 1998 Agreement is that Mr Dunstan’s likely earnings while suspended from duty and on deemed leave of absence while in custody would be $0, subject to exercise of discretion to pay him part of his salary on hardship grounds. As he was paid part of his salary from 1 November 1998 to 31 March 1999 under s 63C(2)(a)(ii) or under s 63R(2) of the 1922 PS Act, his likely earnings would be $1,153.85 per week if those weekly payments are included.
In sum therefore, from 1 November 1998 to 25 May 1999, the amount of Mr Dunstan’s NWE amount calculated under ss 8(1) to 8(9G), an amount of $1,415.69 per week ($73,616 per annum) (subject to the inclusion of performance pay, to which I will return), exceeds the amount he would notionally earn during this period, absent incapacity. In those circumstances, s 8(10) operates to reduce Mr Dunstan’s NWE amount as follows –
(a)from 1 November 1998 to 31 March 1999, his NWE amount is reduced to the partial amount of salary he was paid, being $1,153.85 or, if those discretionary payments are not included, $0 per week; and
(b)from 1 April 1999 to 25 May 1999, his NWE amount is reduced to $0 per week.
Performance pay
Comcare does not dispute that Mr Dunstan was entitled to performance pay from time to time, but does not accept that this should be included when calculating his NWE amount at any relevant time.
Mr Dunstan says that he was entitled to annual performance pay in his former employment as an Executive Level 2 officer (previously known as a Senior Officer Grade B), and that this should be taken into account when calculating his NWE amount from 1 November 1998 and, by implication, from 3 January 2008.
This is not correct for three key reasons.
Firstly, as I have said, Mr Dunstan’s NWE from 1 November 1998 to 25 May 1999 is to be reduced under s 8(10). In view of this, it is not necessary to proceed further to consider the effect of Mr Dunstan’s qualification for or receipt of performance pay in 1998 or 1999, if any, on his NWE at those times. Even if he qualified for or he was paid performance pay in 1998 and 1999, his NWE amount from 1 November 1998 to 25 May 1999 is to be reduced by operation of s 8(10).
Secondly, it is not established that Mr Dunstan qualified for annual performance pay under the 1998 Agreement or under the 2000 Agreement.
Thirdly, it is quite clear from the 1998 Agreement and the 2000 Agreement that annual performance pay is, in effect, a bonus for qualifying employees – a qualifying employee will be paid a lump sum following the end of the relevant financial year, whereas an employee who does not meet the qualifying criteria will not receive such a payment. Being an annual bonus, it does not affect the employee’s base rate of pay for the following year. Thus, even if Mr Dunstan qualified for or received performance pay under the 1998 or 2000 Agreements in respect of any particular financial year, it does not follow that this would have any enduring effect upon the amount of his NWE in any other year.
Under s 8 of the SRC Act, the NWE amount calculated under s 8(1) and (2) may be adjusted from time to time under s 8(6) if the employee completes a particular period of service or if the employee receives “an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment”. Furthermore, under s 8(9) and (9A) an employee’s NWE may be increased by –
8(9A) … the percentage increase… in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the time of the injury as a result of:
(a) the operation of a law of the Commonwealth…; or
(b) the making, alteration or operation of an award, order, determination or industrial agreement or the doing of any other act or thing, under such a law.
Even though Mr Dunstan asserts that he was paid annual performance pay before the injury in 1991, there does not appear to be any probative material, in the form of remuneration records or industrial instruments, covering periods prior to 1998. Furthermore, Mr Dunstan informed me that there is no dispute about his NWE amounts during the first two periods in 1991 and 1992 that are traversed in the reviewable decision. It is quite clear that the NWE amounts during these periods did not include any amount of performance pay. The initial NWE amount as of 11 July 1991 was calculated on the basis of Mr Dunstan’s annual salary when he was injured - $48,156, equating to a weekly amount of $926.08. The NWE amount as of 3 April 1992 was $1,026.98 on the basis that Mr Dunstan’s annual salary increased to $53,403[22].
[22] T22 folio 253
The provision of performance pay under the 1998 and 2000 Agreements is subject to the employee’s annual performance appraisal which is to include an assessment against business outcomes, job competencies and associated leadership role[23]. At cl 13.5, the Agreement provides that –
13.5 Employees at the Executive Level 2 classification are entitled to performance pay of 5, 10 or 15 per cent of base rate of pay, payable in a lump sum after the end of each financial year, subject to the following conditions:
- an employee will be entitled to performance pay of 5 per cent of their base rate of pay where, in the opinion of the Commissioner, there has been satisfactory achievement of business outcomes for the relevant financial year (as specified in the employee’s annual performance agreement) and where the Commissioner has rated the employee as satisfactory against job competencies and the associated leadership role detailed in Attachment B to this agreement.
…
[23] Exhibit 1, cl 13.7.
In view of this, for Mr Dunstan to qualify for performance pay as of 1 November 1998, it would need to be established that he was rated as satisfactory against job competencies in an annual performance appraisal, following completion of the 1997-1998 financial year.
Mr Dunstan was suspended without pay, or on leave of absence from his employment, from 13 October 1997 to 14 December 1997 and from 15 January 1998 to 6 July 1999. In those circumstances, it would not be surprising if no performance appraisal was conducted in 1998 or 1999. Even though he was paid part of his salary on hardship grounds from 9 March 1998 to 31 March 1999[24], Mr Dunstan performed no duties during the periods in which he was absent from his employment while suspended from duty or held in custody. These periods may not count as ‘service’ under s 63C and s 63R and may render Mr Dunstan ineligible for annual performance pay during those periods.
[24] T18 folio 224.
In view of his circumstances at the time, it is likely that Mr Dunstan was not subject to a performance appraisal following completion of the 1997-1998 financial year. No relevant performance appraisal documents are in evidence. The inclusion of a five percent factor in his superannuation salary and in the calculation of his entitlements on cessation of his employment does not mean that any such appraisal was undertaken or, if it was, that Mr Dunstan’s performance was rated as satisfactory against the applicable criteria.
Mr Dunstan relies on information provided by the ATO, particularly in four key documents setting out his salary at the time. I note his extensive written submissions on this point (see T18, for example). The first document is in the form of a payroll enquiry on 26 November 1998 in which his salary for superannuation purposes is shown to be $77,297[25]. The second document is in the form of an email response to multiple salary queries, apparently in respect of superannuation – “[Mr Dunstan’s] 2000 salary for super is reported as $39749 at 5% we don’t show a 1999 salary for him at all and his 1998 salary was $77297”[26]. The third document is again in the form of an email which sets out information about Mr Dunstan’s superannuation salary[27] –
“1999 super salary is $77297pa
2000 super salary is $77297pa
Contribution rate is 5%”
[25] T18 folio 222.
[26] T18 folio 223.
[27] T18 folio 224.
The fourth document is a hand-written note setting out calculations that relate to the termination of Mr Dunstan’s employment[28]. This document sets out two annual salary figures –
Rec leave
Balance 36.8hrs
$78092$1499.80+5% e $81997 $1573.96 √
LSL
0.231518.450.26674mnths e $78092 $1735.861571.08 √[28] T18 folio 233
The applicable base salary levels for Mr Dunstan, being the upper pay point in Pay Zone 1 for an Executive Level 2 employee, are –
30.4.98 13.4.00 23.11.00 24.5.01
Pay Zone 1 … … … …
73616 76581 78092 79623[29]
[29] T18 folio 225.
On this evidence, it appears that the authors of the documents Mr Dunstan relies upon increased his base rate of pay by five percent when calculating his superannuation salary and his recreation leave entitlement on cessation of his employment.
Under cl 13.14 of the 1998 and 2000 Agreements, provision is made for a five percent ‘at risk’ component of performance pay to be included when calculating an employee’s superannuation salary. It does not follow from this that Mr Dunstan qualified for or was paid annual performance pay in 1998 or 1999. I am satisfied that he was not. Calculation of an employee’s superannuation salary to include a five percent provision for performance pay under the 1998 and 2000 Agreements was a formulaic mechanism to take account of the “at risk” component of performance pay. Superannuation contributions were deducted from salary payments on this basis[30].
[30] T18 folio 222.
As regards the inclusion of performance pay in Mr Dunstan’s recreation leave entitlement, provision is made in cl 13.10 of the 1998 and 2000 Agreements for the inclusion of performance pay in an employee’s final entitlements on cessation, “Where it was received in the previous year”. Under cl 13.13 of each Agreement, performance pay may be payable on a pro rata basis to an employee who qualifies but who has taken more than four weeks leave without pay during the relevant year. I note that under cl 13.13A of the 2000 Agreement, where an employee ceases employment, he or she “will be eligible for performance pay, where applicable, on a pro-rata basis provided they have worked at least 12 weeks of the financial year”.
Considering these matters, I struggle to see how Mr Dunstan could satisfy the requirements for inclusion of annual performance pay in his recreation leave entitlements on cessation of his employment under the 1998 and 2000 Agreements. It is probable that he did not meet the performance appraisal requirements to qualify for annual performance pay following the 1997-98 financial year or in any subsequent year prior to the date on which his employment was terminated. If that is correct, he could not meet the requirements of cl 13.10. In any event, it is quite clear that he did not meet the requirements of cl 13.13 and 13.13A of the 2000 Agreement, such that any amount of annual performance pay was due to him.
If Mr Dunstan was paid an amount for performance pay on cessation of his employment, as the document on which he relies suggests, it does not follow that the calculation or assumptions leading to that result were correct. Even assuming they are (and I make no such finding), it would not mean that Mr Dunstan’s annual salary was adjusted, incrementally at the time, in retrospect, or otherwise, or that his NWE amount should be adjusted accordingly.
In sum, the inclusion of a five per cent provision for the ‘at risk’ component of performance pay in Mr Dunstan’s superannuation salary in 1998 or 1999, and in his final recreation leave entitlements on cessation of his ATO employment, does not mean that he qualified for performance pay, or that his ongoing annual salary included the five percent ‘at risk’ component, such that his NWE amount should be adjusted under s 8(6) or under s 8(9) and (9A) of the SRC Act of the SRC Act. I think the better view is that the calculation of Mr Dunstan’s superannuation salary reflected the generous performance pay provisions under the 1998 and 2000 Agreements, allowing for the salary to be struck for superannuation purposes whether or not the ATO met its performance objectives and whether or not any particular employee actually qualified for and received a payment of this kind. And I think that the inclusion of five percent performance pay in his recreation leave entitlements on cessation of his employment, rightly or wrongly, does not mean that his annual salary was increased at that time – this has the character of a termination payment.
Furthermore, under the 1998 and 2000 Agreements, annual performance pay is payable as a lump sum following the end of the relevant financial year. It is not paid in the form of an ongoing incremental increase in salary or a progression or advancement in a hierarchy of pay points within a range, such as occurred in Re Frew and Comcare[31]. Whether and how a one-off annual payment of this kind is to be included in the adjustment of an injured employee’s NWE is not entirely clear. But this is not something I need to determine in Mr Dunstan’s case, as I am satisfied in the particular circumstances that there is no firm basis to adjust his NWE from 1 November 1998 to 25 May 1999, or from 3 January 2008 to 15 December 2012, to include a provision for annual performance pay in 1998, 1999, 2000 or 2001.
[31] [2011] AATA 597.
Productivity pay
Mr Dunstan asserts that his NWE should be adjusted to take account of the two percent lump sum productivity payment that was scheduled for payment as of 24 May 2001.
This is not correct.
Mr Dunstan’s employment ceased on 21 May 2001.
The words of cl 12A.1 of the 2000 Agreement are quite clear –
12A.1 If 2000/2001 corporate outcomes and funding of pay rises are on track to be achieved within budget when payment is due, employees will receive
(a) (i) 2 per cent, as an increase in base rates of salary as at 13 April 2000, effective from 23 November 2000
(ii) a lump sum payment equivalent to 2% of the employee’s ordinary time earnings over the period from 6 July 2000 to November 2000; and
(b) (i) a further 2 per cent increase in base rates of pay as of 13 April 2000, effective from 24 May 2001, and
(ii) a lump sum equivalent to 2% of the employee’s ordinary time earnings over the period from 6 July 2000 to 23 May 2001.
Attachment A to the 2000 Agreement sets out indicative lump sum amounts “after 23 May 2001”.
As can be seen, the lump sum amounts are to be calculated by reference to the employee’s ordinary time earnings over the period from 6 July 2000 to 23 May 2001 with the entitlement arising ‘when payment is due’. It is quite clear that the intention of this arrangement is to provide ATO employees with a four percent pay rise over the full year, with two deferred incremental increases attended by catch-up lump sum payments. The second incremental increase is subject only to corporate outcomes being achieved and the ability of the ATO budget to fund the pay rise on and after 24 May 2001, the day following the end of the period in which the catch-up lump sum is to be calculated.
There is no provision for payment of the second pay rise, or for a pro rata payment of the lump sum catch-up payment, to an employee who ceased employment before the date on which the second round of payments was due – 24 May 2001.
On the day Mr Dunstan’s employment ceased, 21 May 2001, he was not entitled to the second incremental pay rise that was due to come into effect on 24 May 2001 and, consequently, he was not entitled to any part of the lump sum payment that was due after 23 May 2001. The second incremental productivity pay rise that was “effective from” 24 May 2001 simply did not apply to him.
It follows that Mr Dunstan’s NWE amount cannot be adjusted under s 8(6) or s 8(9) and (9A) of the SRC Act in the manner for which he contends.
No other issue was raised or taken in respect of annual indexation under s 8(9B) to 9(G) of the SRC Act.
NWE amounts
Mr Dunstan’s assertions concerning the amount of his NWE during the specific periods agitated in these proceedings are not made out.
No issue was taken in respect of the annual indexation percentages set out in the reviewable decision for the purposes of s 8(9B) of the SRC Act[32]. I will proceed on the basis that those percentage amounts are correct.
[32] T22 folio 257.
On that basis, Mr Dunstan’s weekly NWE amounts are as follows –
(a)from 11 to 16 July 1991 - $926.08, based an annual salary of $48,156;
(b)from 3 to 10 April 1992 - $1,026.98, based on annual salary of $53,403;
(c)from 1 November 1998 to 31 March 1999 - $1,153.85, based on the partial salary he was paid on hardship grounds while suspended from duty or on deemed leave of absence without pay, or $0 per week if those amounts are excluded;
(d)from 1 April 1999 to 25 May 1999 - $0, based on the earnings of $0 while he was suspended from duty without pay;
(e)on 3 January 2008 - $1,867.53, based on the annual indexation percentages applied to Mr Dunstan’s annual salary on the cessation of his ATO employment.
(f)from 3 January 2008 to 15 December 2012 – the amounts set out on page 10 of the reviewable decision[33] applying annual indexation percentages are correct.
[33] T22 folio 258.
Ability to earn - AE
Mr Dunstan’s entitlement to weekly compensation for incapacity is to be determined week by week under s 19. The first step is to apply the formula NWE – AE that is set out in s 19(2), where ‘AE’ means the amount per week the employee earns in any employment that he or she undertakes in that week, or the weekly amount the employee is able to earn in suitable employment, whichever is greater.
It is agreed, and I accept, that Mr Dunstan was totally incapacitated for work during each of the periods presently in issue.
The sole issue arising under this section concerns the amounts of part salary Mr Dunstan was paid on hardship grounds from 1 November 1998 to 31 March 1999. Did he earn these amounts from employment he undertook in each relevant week, such that they are within the meaning of ‘AE’ for the purposes of s 19(2)? I am satisfied that the answer to this question is Yes.
Albeit that the payments were made in hardship grounds while Mr Dunstan was suspended from duty without pay, or while he was in custody, and he undertook no duties, the amounts were part payment of his salary and constitute ‘earnings’ from his erstwhile ‘employment’.
Even if this is not correct, and the payments are not treated as amounts he earned from employment he undertook each week, they are amounts he was paid by his employer that should be taken into account as relevant matters under s 19(4)(g), as Comcare asserts. Even though s 19(4) is expressly directed to the amount an injured employee is able to earn in suitable employment, this does not mean that it cannot or should not be applied in Mr Dunstan’s circumstances.
It follows and I find that –
(a)from 11 to 16 July 1991 Mr Dunstan’s AE amount was $0;
(b)from 3 to 10 April 1992 his AE was $0;
(c)from 1 November 1998 to 31 March 1999 his AE amount each week is $1,153.80, being the amount of his salary that he was paid on hardship grounds while suspended from duty without pay or while deemed to be absent on leave without pay;
(d)from 1 April 1999 to 25 May 1999, his weekly AE amount is $0; and
(e)from 3 January 2008 to 15 December 2012, his weekly AE amount is $0.
Weekly compensation
No issue was taken by either party in respect of normal weekly hours, ‘NWH’, being 36.75 hours per week, and the application of adjustment percentages under s 19(3), or the formulation and application of s 19(5) in respect of the application of the cap on compensation, being 150 percent of the Average Weekly Overtime Earnings of Full Time Adults (AWOTEFA), after 45 weeks. I have considered the way in which these sections apply in the present circumstances and, assuming that the AWOTEFA amounts set out in the reviewable decision are correct, as will appear, Mr Dunstan’s weekly compensation amounts do not exceed the AWOTEFA cap in relevant weeks.
Mr Dunstan’s weekly compensation for incapacity is calculated as follows –
(a)from Thursday 11 to Tuesday 16 July 1991 at 100% of NWE of $926.08 minus AE of $0 - $740.86;
(b)from Friday 3 to Friday 10 April 1992 at 100 % of NWE of $1,026.98 minus AE of $0 - $1,232.38;
(c)from Sunday 1 November 1998 to Wednesday 31 March 1999 at NWE of $1,153.80 (if part salary payments are included) or $0 (if part salary payments are not included) minus AE of $1,153.80 - $0;
(d)from Thursday 1 April 1999 to Tuesday 25 May 1999 at NWE of $0 minus AE of $0 - $0;
(a)from 3 January 2008 to 30 June 2008 at 100% of NWE of $1,867.53 minus AE of $0 - $1,867.53 per week;
(b)from 1 July 2008 to 4 September 2008 at 100% of NWE of $1,945.97 minus AE of $0 - $1,945.97 per week;
(c)from 5 September 2008 to 30 June 2009 at 75% of NWE of $1,945.97 minus AE of $0 - $1,459.48 per week;
(d)from 1 July 2009 to 30 June 2010 at 75% of NWE of $2,027.70 minus AE of $0 - $1,520.78 per week;
(e)from 1 July 2010 to 30 June 2011 at 75% of NWE of $2,086.50 minus AE of $0 - $1,564.88 per week;
(f)from 1 July 2011 to 30 June 2012 at 75% of NWE of $2,144.92 minus AE of $0 - $1,608.69 per week; and
(g)from 1 July 2012 to 15 December 2012 at 75% of NWE of $2,224.28 minus AE of $0 - $1,668.21 per week.
Conclusion
The weekly amounts of compensation I have calculated and the overall quantum of compensation for incapacity Mr Dunstan is entitled to receive under s 19 of the SRC Act for the periods presently under consideration are the same as those calculated by Comcare in the reviewable decision.
It follows that the reviewable decision is affirmed.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
..............................[sgd]..........................................
Associate
Dated 10 April 2014
Date of hearing 11 March 2014 Counsel for the Applicant Timothy Crispin Advocate for the Applicant Ronald Clapham, Lawyer & Notary Public Counsel for the Respondent Ben Dubé Advocate for the Respondent Kate Slack Solicitors for the Respondent Sparke Helmore
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