Cook and Telstra Corporation Limited

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 786

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/617

GENERAL ADMINISTRATIVE DIVISION		)
Re		WALLACE GEORGE COOK

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date12 August 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) B J McCabe
  Member

12.     The applicant wishes to return to work at Telstra, even though he took a voluntary redundancy in 1997. He originally requested a ‘return to work’ program, but the appeal has been conducted on the basis he is seeking rehabilitation.

13. Rehabilitation programs are dealt with under Part III of the Act. Section 36(1) provides that an employee who has suffered an injury resulting in an incapacity for work or an impairment may at any time request that the employer “arrange for the assessment of the employee’s capability of undertaking a rehabilitation program”. Telstra arranged for assessments by Dr Black and the Work Solutions Group.

14. Once an assessment was made, Telstra considered whether it should offer a rehabilitation program. In the course of making that decision under s 37(1), Telstra was required to have regard to the matters set out in s 37(3).

15.     Telstra conceded in its letter of 11 July 2002 to the applicant that references in ss 36 and 37 to “an employee” could extend to former employees, like Mr Cook. The author of the letter apparently relied on s 5(9) of the Act, which says that references to an employee in the Act should be taken as references “to a person who has ceased to be an employee” unless it appears from the provisions that a contrary meaning is intended.

16. The drafting of s 5(9) was criticised by Samuels JA in the New South Wales Court of Appeal in Commonwealth v Holland (1991) 24 NSWLR 198. His Honour noted that a former employee is not considered to be an employee within the meaning of the Act in every case. As a result, a former employee was able to bring a claim for common law damages even though s 44 of the Act said that employees were barred from making those claims.

17.     At the hearing, Mr Clark on behalf of the respondent suggested Mr Cook was not an employee for the purposes of ss 36 and 37. He had taken a voluntary redundancy, after all. After examining the wording of the relevant provisions and the whole scheme of Part III, I agree. Sections 36 and 37 are plainly intended to provide injured employees with the opportunity to remain working at their full potential: see Re Finch and Telstra Corporation Ltd [1998] AATA 557 at para 200. I do not think the use of the expression “employee” in those sections extends to former employees. While the liability to compensate the applicant persists, the respondent’s obligation to provide rehabilitation under s 37 effectively ends if the applicant elects to accept a redundancy package and leave the…