Durbidge and Repatriation Commission
[2006] AATA 1074
•13 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1074
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/217
VETERANS' APPEALS DIVISION ) Re TERRY DURBIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member)
Professor P Reilly AO (Member)Date13 December 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – earnings related rate of pension – availability of separation package – intended retirement age – decision affirmed
Veterans’ Entitlements Act 1986 ss 21, 23, 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Rehabilitation Commission v Braund (1991) 23 ALD 591;
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996
Starcevich v Repatriation Commission (1987) 18 FCR 221
Sheehy v Repatriation Commission (1996) 66 FCR 569
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703REASONS FOR DECISION
13 December 2006 Mr J G Short (Member)
Professor P Reilly AO (Member)introduction
1. Terry Durbidge is a Vietnam veteran. His accepted disabilities are diabetes mellitus, post-traumatic stress disorder (PTSD) and alcohol dependence or alcohol abuse. He also suffers from chondromalacia patellae of both knees, which is not a war-caused disability.
2. On 29 January 2003, Mr Durbidge lodged an application for review by the Veterans’ Review Board (the VRB) of a decision made by the Repatriation Commission (the Commission). This application was out of time and consequently Mr Durbidge requested that his application be treated as an application for an increased rate of pension. On 18 March 2003, the Commission answered the application by increasing Mr Durbidge’s rate of disability pension to 90 percent of the general rate with effect from 29 January 2003. The Tribunal points out at this stage that although counsel agreed that the earliest date of effect of a favourable decision would be 3 months prior to 29 January 2003, the Tribunal has noted that under s 21 of the Veterans’ Entitlements Act 1986 (the VE Act) the earliest date of effect in respect of an application for an increase in pension, is the date the application was lodged, in this case 29 January 2003.
3. The Veterans’ Review Board affirmed the decision on 3 February 2004 and on 3 March 2004 Mr Durbidge lodged an appeal to this Tribunal.
4. On 29 March 2005, Senior Member Purcell delivered her decision affirming the decision under review. On 3 August 2005, Mr Justice Mansfield of the Federal Court of Australia allowed an appeal and remitted the application for rehearing by this Tribunal.
5. In allowing the appeal Mr Justice Mansfield made the following comments:
“If I were then to say that that order is made by consent because the respondent accepts that the Tribunal failed to ask itself the correct question under section 24(1)(c) in that it did not ask whether, at the date of its determination, the applicant was prevented by his war-related incapacity or disability, and by that incapacity or disability alone from continuing in the remunerative work that he was undertaking, and were to refer to Banovich v Repatriation Commission (1986) 69 ALR 395 at 402, and if I also were to note that the applicant asserted other errors on the part of the Tribunal, including that the Tribunal failed also to ask the correct question under section 24(1)(c) by addressing particular work that the applicant had undertaken and had ceased to do, rather than the remunerative work that the veteran was undertaking as also explained in Banovich, but that the respondent does not accept that it committed that error, that would signal to the Tribunal that you had that point alive but I don’t need to decide it.”
6. Mr Durbidge’s entitlement to a pension at either the special rate or the intermediate rate is to be determined under ss 24 or 23 of the VE Act. The Commission acknowledges that Mr Durbidge satisfies the first criterion of both ss 24 and 23 (an entitlement to a pension at a rate higher than 70 percent of the general rate). The Commission does not accept that Mr Durbidge’s war-caused disabilities prevent work for greater than 8 hours (s 24(1)(b)) or greater than 20 hours (s 23(1)(b)).
issues for determination
7. The issues before the Tribunal are:
·whether Mr Durbidge satisfies either s 24(1)(b) or s 23(1)(b) of the VE Act, that is whether his incapacity from his war-caused injuries alone are of such a nature as to render him incapable of undertaking remunerative work for greater than 8 hours or greater than 20 hours; and
·whether by reason of incapacity from war-caused injury or disease alone Mr Durbidge is prevented from undertaking remunerative work that he was undertaking and is, as a consequence, suffering a loss of wages or earnings on his own account that he would not be suffering if he were free from that incapacity (s 23(1)(c) and s 24(1)(c)).
8. It is common ground that Mr Durbidge has not sought to engage in remunerative work since his cessation of work, and so the ameliorating provisions of ss 24(2)(b) and 23(3)(b) do not apply.
9. The Tribunal has concluded that Mr Durbidge has satisfied the requirements of s 23(1)(b) of the VE Act, that is his incapacity from war-caused injury or disease or both, is, of itself alone, of such a nature as to render Mr Durbidge incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. The Tribunal is satisfied that Mr Durbidge’s war-caused disabilities alone would prevent him from working more than 20 hours a week. However, the Tribunal is not satisfied that Mr Durbidge’s war-caused disabilities alone are of such a nature as to prevent him from working more than 8 hours a week. In these circumstances, and for the reasons set out below, Mr Durbidge’s application for a special rate will fail. The Tribunal will however further consider his entitlement to the intermediate rate.
legislation
10. Sections 23(1)(c) and s 23(3)(a) of the VE Act relevantly provide as follows:
“23(1) This section applies to a veteran if:
(c)the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
…
(3) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i)if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
…”
background and evidence
11. It is common ground that after discharge from the Australian Army, Mr Durbidge worked from about 8 December 1969 until 19 May 2000 for an employer initially named Chrysler and later Mitsubishi Australia. He rose to the position of a manager with significant responsibility. Mr Durbidge accepted a redundancy package with effect from 19 May 2000. It is also common ground that for a number of months thereafter Mr Durbidge did not work, but then found casual employment with Integrated Workforce, a labour hire company. This company initially sent Mr Durbidge to perform stock take type duties, but then in July 2002 sent him to work at RED Australia as a general storeman. Mr Durbidge resigned this last mentioned position in November 2002 and has not worked for remuneration since.
dr m ewer
12. The applicant called Psychiatrist, Dr Ewer. Dr Ewer had provided reports dated 26 January 2000, 27 September 2002, 5 March 2003 and most recently, a report dated 2 May 2006 (Exhibit A5). Dr Ewer had reported that assuming the history Mr Durbidge had given him was accurate, then it would be his opinion that Mr Durbidge’s PTSD interfered with him effectively discharging his duties as a manager at Mitsubishi. Dr Ewer had recorded Mr Durbidge as providing a history on 20 September 2002 of not having worked for more than about 10 hours a month since ceasing work at Mitsubishi in May 2000. During his evidence to this Tribunal, Mr Durbidge confirmed that in July 2002 and continuing until November 2002 he had in fact been working approximately 40 hours a week providing services to RED Australia. Dr Ewer said that in the light of this inconsistency he would need to reconsider his view that Mr Durbidge was unable to work for more than 8 hours a week. Given the opportunity during re-examination, Mr Durbidge was unable to explain how Dr Ewer formed the impression that Mr Durbidge had not worked for more than 10 hours a month since leaving Mitsubishi Australia. Mr Durbidge said that the mistake may have been his, but he did not intend to mislead Dr Ewer.
dr t davis
13. The Commission called Psychiatrist, Dr Davis. His report is dated 6 December 2005 (Exhibit R1). Dr Davis provided the opinion that Mr Durbidge’s accepted disabilities of alcohol dependence or abuse and PTSD significantly impacted on his ability to work. He said at paragraph (d) of page 6 of his report that he was not convinced that Mr Durbidge’s psychological condition prevented him from continuing to undertake lower level work at least on a part-time basis, working for between 10 and 20 hours a week. Dr Davis was referred to a letter from Tracy Wallage, State Manager of RED Australia, dated 31 May 2004 (Exhibit A7). the letter was addressed to Mr Durbidge’s solicitor. The letter reads in part as follows:
“…
I do note that during his time with us Terry was inclined to be unable to cope with basic duties. Our spare parts supervisor, Mr Barry Hautop, was reluctant to assign Terry tasks because all tasks would have to be double checked to ensure not only had they been completed but were also correct. Terry [sic]inability to cope seemed to manifest into panic attacks.
…”
14. The Tribunal notes that Ms Wallage was not required to provide oral evidence. Dr Davis suggested this letter may indicate that Mr Durbidge was not coping with the duties required at RED Australia.
15. It is unusual, but in this case the Tribunal has found support for the proposition that the applicant cannot work more than 20 hours a week due to his accepted disabilities alone from evidence including the medical evidence called by the Commission (Dr Davis). In the light of his misconception, Dr Ewer’s evidence was of little assistance to the Tribunal.
16. Mr Durbidge’s evidence was to the effect that over the 4 or 5 years leading up to his decision to terminate his employment with Mitsubishi with effect from 19 May 2000, he had felt his ability to cope waning. Mr Durbidge said that he was drinking a significant amount. He kept a store of wine in his office and with 2 or 3 other workers would consume large amounts of alcohol during work hours. He knew that this was inappropriate. Mr Durbidge also said that his work appraisal reports, although generally indicating satisfaction with his work, had trended towards a worsening work performance over the last 2 years at Mitsubishi. A work appraisal dated September 1998 referred to Mr Durbidge’s “medical condition” as causing forgetfulness.
17. Mr Durbidge had provided evidence to the VRB and to the AAT hearing conducted by Senior Member Purcell. He was referred to the transcripts of those hearings and appeared to concede that he had at one time intended to retire at about 55 years of age. He said that when a separation package was offered, he readily accepted the package. He told Senior Member Purcell (page 39, line 20) that “…. when that opportunity came up that made my resigning a little bit more palatable”. He also referred (page 39, line 32) to the plan having been to retire at 55 years of age. The Tribunal reminds itself that when Mr Durbidge left Mitsubishi, he was 52 years of age.
18. Mr Durbidge said that after leaving Mitsubishi he did not work for approximately 6 months, but then accepted a position at Integrated Workforce (a labour hire firm). Mr Durbidge said that he worked on a part-time basis for approximately a year performing stock take work, but then in July 2002 was sent to work at RED Australia. He said that initially he enjoyed the work and that it was very easy work “A trained monkey could have done it”. He said however that after a time he was asked to start entering some data into a computer. He said that he found the computer work very frustrating.
19. Mr Durbidge also spoke of an occasion when he believes he experienced a panic attack when he saw motorists, including Vietnamese, arguing over an incident, unconnected with Mr Durbidge.
20. Mr Durbidge said that approaching Christmas 2002 he was asked if he could perform more duties, including some computer work. He said that he believed he could not cope, and it was in these circumstances that he resigned the employment he had performed at RED Australia.
21. In cross-examination Mr Durbidge confirmed that he had told Dr Watson (his then local medical officer) on 24 July 2002, that he had retired 2 years ago and that he had also told Commonwealth Medical Officer, Dr Seith, in May 2000, just after leaving Mitsubishi, that he was not unhappy with his redundancy and that a new enterprise bargaining agreement had to be negotiated and that he was happy to have avoided this.
22. In the light of the evidence before it, particularly the opinion expressed by Dr Davis, the Tribunal is satisfied that Mr Durbidge’s war-caused disabilities alone would prevent him working more than 20 hours a week. The Tribunal therefore finds that Mr Durbidge satisfies s 23(1)(b) of the VE Act. The Tribunal went on to consider s 23(1)(c) of the VE Act which requires the Tribunal to determine whether it was Mr Durbidge’s war-caused injury or war-caused disease or both alone which prevented him from continuing to undertake the remunerative work which he was undertaking and whether he is, as a result thereof, suffering a loss of earnings or wages which he would not be suffering if he were free from that incapacity. In this regard the Tribunal considered s 23(3) of the VE Act:
“s23(3) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i)if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and”
consideraton
23. In considering the law in relation to earnings related rates of pension, the issues relating to an intermediate rate and a special rate of pension are virtually identical and consequently references in the legislation to s 24 of the VE Act will be made, however it should be noted that there is equivalent legislation under s 23 of the VE Act.
24. In considering an earnings related rate of pension the Tribunal refers first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
“1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?”
25. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
26. The time at which the assessment under s 23(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Rehabilitation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996. As to this issue, in Jackman, Tamberlin J said:
“A presumption of continuance is not appropriate to the determination the AAT has to make under s 24(1)(c). It is well accepted that the relevant date of assessment is the date of application, not retirement: Banovich v Repatriation Commission (1986) 69 ALR 395. The AAT must make its determination as at the time of application, taking into account all considerations relevant to the specific case in question. Where the application date is close to the retirement date the weight to be given to the applicant’s circumstances at the time of retirement will be greater than in cases, such as the present, where there is a lengthy period of time between the dates. In such cases other significant factors such as age and time out of the workforce can become important and relevant considerations: Repatriation Commission v Wilson (1996) 43 ALD 77; Repatriation Commission v Braund (1991) 23 ALD 591. It is not sufficient for the AAT to be satisfied that at the date of retirement the applicant satisfied s 24(1)(c): Braund at 595. This is not the question before the AAT.”
27. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J. Finally, the remunerative work must be substantial remunerative work which the veteran has effectively performed: Starcevich (supra) at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569.
28. The applicant has previously undertaken both managerial warehouse/stock control work (primarily performed at Mitsubishi) and more menial warehouse/stock control work (early days at Mitsubishi and while working at RED Australia) and the Tribunal considers this to be the type of work Mr Durbidge was undertaking.
29. The second question in Flentjar is whether the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work which the Tribunal has found he was undertaking. As mentioned, the Tribunal has already found on the evidence, including the opinion evidence of Dr Davis, that Mr Durbidge would be prevented, by his accepted disabilities alone, from continuing to work more than 20 hours per week in the type of work previously undertaken. The Tribunal is not satisfied on the evidence that Mr Durbidge has been prevented by his war-caused conditions alone from working more than 8 hours per week.
30. The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.
31. In Cavell, Burchett J said further, at [539], that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”. In Forbes, RD Nicholson J said at [39]: “The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
32. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:
“[36]The tribunal’s task was to assess what the veteran probably would have done, if he had none of the service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
33. The Tribunal has carefully considered whether Mr Durbidge’s accepted disabilities are the only factor or factors preventing him from working. The Tribunal has noted that a significant redundancy package had been offered by Mitsubishi and accepted by Mr Durbidge, and that work appraisal reports, prepared by Mitsubishi prior to Mr Durbidge leaving that employment, indicated Mitsubishi’s general satisfaction with his work effort. The Tribunal has also noted Mr Durbidge’s previously expressed intention to have retired from work at 55 years or 58 years of age (date of birth 22 October 1947).
34. In addition to the abovementioned matters, the Tribunal has also considered Mr Durbidge’s evidence and accepts, that he had noted a diminishing capacity to work over a period of years leading up to his decision to accept a redundancy package from Mitsubishi and later to cease the employment performed at RED Australia. The Tribunal has also noted Mr Durbidge’s evidence of an increased drinking pattern and a general decline in his work appraisal reports.
35. The Tribunal has also noted the letter from the State Manager of RED Australia dated 31 May 2004 indicating Mr Durbidge’s difficulty in coping with the work performed at RED Australia and a reference to panic attacks. The Tribunal accepts that Mr Durbidge’s accepted disabilities were a significant factor in his decision to leave work at Mitsubishi and then later to cease the employment performed at RED Australia.
36. The Tribunal also considered the evidence provided by Mr Durbidge variously at the VRB hearing; the AAT hearing conducted by Senior Member Purcell and to this Tribunal concerning Mr Durbidge’s retirement intentions. The Tribunal noted Mr Durbidge’s evidence of an intention to retire at 55 years of age, later expressed to be 55 years of age or 58 years of age (page 40, line 45). Mr Durbidge was asked whether he would prefer to be working at the moment. His response was “Well, I don’t know so much now, because I am 58 and about the time I would have thought that I would have retired”. At page 87, line 23, Mr Durbidge said “I was looking to get out at 55 – okay,55”.
37. The Tribunal is aware that Mr Durbidge turned 55 years of age in the month prior to his decision to no longer work at RED Australia and turned 58 years of age on 22 October 2005. In the light of this evidence, the Tribunal finds that Mr Durbidge’s retirement intentions were a significant factor, both preventing him working at the commencement of the assessment period and contributing to his decision to cease employment performed at RED Australia.
38. The Tribunal has also noted Mr Durbidge’s evidence to the effect that the availability of a severance package was a factor in his decision to leave Mitsubishi.
39. In Repatriation Commission v Smith (supra) Beaumont J, with whom Northrop and Spender JJ agreed, said at 337: “As has been said, the question posed by s 24(1)(c) is one of hypothetical facts. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities”.
40. In Repatriation Commission v Van Heteren (2003) 75 ALD 703 Finn J considered the relevance of the deeming provisions of s 24(2)(a)(i). His Honour said, at [25]:
“This question is not answered simply by finding that, in the assessment period, the veteran is unable to engage in any remunerative work. It in fact presupposes that he or she may well not be: cf 24(1)(b). And because of the deemed ‘no loss’ provisions of s 24(2)(a)(i) which apply where the veteran has ceased to engage in remunerative work for reasons other than his or her war-caused conditions, it requires an examination of the reasons why the veteran ceased work.”
41. The Tribunal fully appreciates and finds as a fact that Mr Durbidge’s accepted disabilities were a factor in his decision to cease employment and a factor which affected Mr Durbidge’s ability to work and consequent loss of income throughout the assessment period. Nevertheless, the Tribunal has also found as a fact that Mr Durbidge’s retirement intentions were a significant factor motivating his decision to cease employment within approximately four weeks of attaining the age of 55 years, and reflected through the fact that he was not employed during the assessment period. The Tribunal also considers that the additional financial security provided by the termination package offered by Mitsubishi was also a significant factor affecting Mr Durbidge’s decision to cease employment and also affected the likelihood of employment during the assessment period.
42. For the above mentioned reasons, the Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
And Professor P Reilly AO (Member)Signed: ...........J Coulthard.............................................
AssociateDates of Hearing 4/5 October 2006
Date of Decision 13 December 2006
Counsel for the Applicant Mr N Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent AGS
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