Colin Dunstan and Comcare

Case [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

  1. 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).

  2. 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.

  3. 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.

  4. Mr Dunstan did not agree with this determination and requested reconsideration. In the result, Comcare set aside…

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AGLC
Colin Dunstan and Comcare [2014] AATA 208
Case
[2014] AATA 208
Decision Date

CaseChat Overview and Summary

The case of Colin Dunstan and Comcare involved a dispute over the calculation of weekly compensation for incapacity under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Mr Dunstan, a former Commonwealth public servant, sought review of his weekly compensation for incapacity due to a disease caused by his employment. Comcare, the respondent, had previously appealed the Tribunal's decision, which was dismissed by the Full Court in Comcare v Dunstan. This resulted in Mr Dunstan’s weekly compensation for incapacity being determined under section 19 of the SRC Act.

The key legal issues addressed in the case were the calculation of Mr Dunstan’s weekly compensation for incapacity, considering various periods of employment and suspension, and the applicability of section 19 of the SRC Act in determining these payments. Specifically, the court needed to decide how to treat periods during which Mr Dunstan was suspended from duty or incarcerated, and how these periods should affect his compensation. It was also necessary to determine whether the agreed earnings (AE) should be considered in the calculation, and if so, how.

The court examined the relevant sections of the SRC Act and considered the terms of Mr Dunstan's employment, including his pay and the periods during which he was suspended or incarcerated. The court found that the correct approach was to calculate Mr Dunstan's normal weekly earnings (NWE) and apply the appropriate percentages of NWE, adjusted by the AE where applicable, as per section 19 of the SRC Act. The court affirmed the weekly compensation amounts as calculated by Comcare, noting that the Tribunal's calculations were consistent with the legal framework provided by the SRC Act.

In conclusion, the court upheld the reviewable decision, affirming the weekly compensation amounts for incapacity as calculated by Comcare. The court found that the Tribunal's determinations were correct and aligned with the statutory requirements, thus affirming the quantum of compensation Mr Dunstan was entitled to receive.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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