Davis and Australian Postal Corporation (Compensation)
[2022] AATA 4348
•15 December 2022
Davis and Australian Postal Corporation (Compensation) [2022] AATA 4348 (15 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/10171 and 2022/0370
Re:Alan Davis
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
Decision
Tribunal:Mr A. Maryniak KC, Member
Date:15 December 2022
Place:Melbourne
The Tribunal sets aside the reviewable decisions of 26 November 2021 and 22 December 2021 and, in substitution, decides that:
1.The Applicant has not received a lump sum benefit under a superannuation scheme as a result of retirement and, accordingly, is entitled to compensation for incapacity for work under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) rather than section 21, until 28 March 2022;
2.The Respondent must pay the Applicant’s legal costs and disbursements in respect of these proceedings under section 67 of the Act.
......................[sgd]..................................................
Mr A. Maryniak KC, Member
Catchwords
COMPENSATION – whether Applicant received a superannuation lump sum – whether superannuation lump sum received as a result of retirement – three instances of receipt of lump sum raised – where Applicant received notices that superannuation had been transferred to different plans or funds – no opportunity to object – no tacit or implied consent – superannuation withdrawn upon reaching preservation age – held insufficient temporal or causal link between receipt of lump sum and retirement – decision set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Archer v Comcare [2000] FCA 1296
Comcare v Dunstan [2014] FCAFC 21
Davis and Australian Postal Corporation [2021] AATA 30
REASONS FOR DECISION
Mr A. Maryniak KC, Member
15 December 2022
The Applicant seeks review of two decisions of the Respondent dated 26 November 2021 and 22 December 2021.
The agreed discrete issues to be determined by the Tribunal are:
(a)Whether the Applicant has ‘received’ a superannuation lump sum so that his entitlement to compensation for incapacity is to be calculated under s 21 rather than s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’); and
(b)If so, whether the superannuation lump sum benefit has been received as a result of his retirement.
The Applicant submits he is entitled to compensation under s 19 of the Act and relies upon Comcare v Dunstan [2014] FCAFC 21 (‘Dunstan’). Further, he submits that he received the superannuation lump sum of $1,984.70 pursuant to his withdrawal request on 22 April 2022, after he reached the pension age in March 2022. Hence, such sum was not received ‘as a result of’ his retirement from the Respondent.
The Respondent submits that s 21 of the Act is satisfied and to be applied, relying upon Archer v Comcare [2000] FCA 1296 (‘Archer’), and distinguishing Dunstan. It submits that there is a sufficient temporal connection between the Applicant’s retirement and his receipt of the lump sum because, inter alia, such monies originated from the Respondent, from which the Applicant retired in early 2019. The Respondent submits, as alternatives, that the Applicant ‘received’ the lump sum within the meaning of s 21 of the Act either on 24 November 2019, 21 February 2020 or 22 April 2022. The significance of these dates is discussed further below.
The Tribunal has considered the documentary evidence including the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (‘the T Documents’), the Applicant’s statement, his oral evidence and the submissions of the parties.
The background facts are essentially agreed. The Applicant was born in September 1955 and reached entitlement to the aged pension in March 2022. He was employed by the Respondent as a truck driver from 5 November 2018 until about 31 January 2019. On 12 December 2018, he injured his right shoulder and was subsequently found to be entitled to compensation.[1]
[1] Davis and Australian Postal Corporation [2021] AATA 30.
By letter dated 27 November 2019, the Applicant was informed that his superannuation had been transferred because he had ‘stopped working for the employer who held this plan’, namely the Respondent.[2] The Tribunal finds that the Applicant took no action regarding this letter and that no opportunity to take any action was provided by that letter.
[2] Exhibit R1 p34.
By letters dated 23 February 2020 and 20 March 2020, the Applicant was informed that his superannuation had again been transferred.[3] The Applicant took no action regarding these letters and, again, the correspondence afforded the Applicant no opportunity to take any action in respect of the finalised transfer of which he was being informed and the Tribunal finds accordingly.
[3] Exhibit R1 pp47-48, 53-54.
In Archer, it was held that an incapacitated employee receives a lump sum benefit under a superannuation scheme ‘when a benefit that is payable to the employee has been paid to him, or has been paid at his direction or when the trustee in some other way has dealt with the benefit at the request or with the consent of the employee’.[4] Further, a benefit was received ‘when the trustee paid the withdrawal benefit into the hands of AMP’ because there, the employee by his conduct had accepted that the payment was to his account.[5]
[4] Archer at [13].
[5] Archer at [14].
On the evidence, the Tribunal is satisfied that the established facts here are distinguishable from those in Archer; and it rejects the Respondent’s submission that the findings in Archer are ‘directly applicable’ to this matter.
Consistent with the findings in Dunstan, the Tribunal finds that there was no relevant ‘tacit consent’ or implied consent by the Applicant to either transfer. The Applicant simply had no input into the two transfers of which he was informed after the event. The Tribunal finds that the Applicant did not receive a lump sum benefit pursuant to s 21 of the Act on either 24 November 2019 or 21 February 2020.
The Applicant accepts that he received the benefit on 22 April 2022. The Tribunal finds that he retired from the Respondent over three years earlier on about 31 January 2019, was entitled to the aged pension from late March 2022, and requested the withdrawal of his superannuation lump sum on 22 April 2022.
On balance, having considered the competing arguments of the parties and the evidence before it, the Tribunal is satisfied that a sufficient temporal or causal link between the Applicant’s receipt of the lump sum and his retirement over 3 years earlier does not exist. The lump sum was received solely as a result of the request for withdrawal made by the Applicant in April 2022. It is clear that s 21(1)(b) requires that the lump sum benefit must be received ‘as a result of’ the employee’s retirement and the Tribunal is not persuaded this is made out on the evidence.
The Tribunal finds that the Applicant did not receive the lump sum benefit under a superannuation scheme ‘as a result of’ his retirement, pursuant to s 21(1)(b) of the Act.
The Tribunal therefore sets aside the reviewable decisions of 26 November 2021 and 22 December 2021 and, in substitution, decides that:
(a)The Applicant has not received a lump sum benefit under a superannuation scheme as a result of retirement and, accordingly, is entitled to compensation for incapacity for work under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) rather than section 21, until 28 March 2022;
(b)The Respondent must pay the Applicant’s legal costs and disbursements in respect of these proceedings under section 67 of the SRC Act.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member
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Associate
Dated: 15 December 2022
Date of hearing: 21 November 2022 Counsel for the Applicant: Ray Ternes Solicitors for the Applicant: Redlich's Work Injury Lawyers Counsel for the Respondent: Roy Seit Solicitors for the Respondent: Australian Postal Corporation
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