Edison Nunez and Australian Postal Corporation
[2014] AATA 125
[2014] AATA 125
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2815
Re
Edison Nunez
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Mr Dean Letcher QC, Senior Member
Date 7 March 2014 Place Sydney The reviewable decision dated 22 May 2012 is set aside and substituted with a decision that the Applicant did not fail or refuse to undertake the Program without reasonable excuse. The payment of benefits and expenses suspended as a result of the reviewable decision should be made from the date upon which they were suspended. The matter is remitted to the respondent for re-institution of payments and calculation of monies owed.
.........................[SGD]...............................................
Mr Dean Letcher QC, Senior Member
CATCHWORDS
COMPENSATION – liability accepted for psychological injury- rehabilitation program –refusal and failure to recommence work - failure to follow program - compensation suspended – reasonable excuse – intention to return to work - reasonable belief in views expressed by medical experts – decision set aside and substituted
LEGISLATION
Safety Rehabilitation and Compensation Act 1988; ss 14, 37(2), 37(7), 37(8), 38
CASES
R v Jones [1995] 3 All ER 139
Conners v Craigie (1994) 756 A Crim R 502
A v Police (1999) 2 NZLR 501
Australian Securities Commission v Ampolex Ltd (1995) 18 ACSR 735
Australian Postal Corporation v Pascoe [2005] FCA 289
Taikato v The Queen (1996) 186 CLR 454
Chowdhary and Comcare [1998] AATA 448
Freeman and Fleetmastrer Services [2013] AATA 38
Finch and Telstra Corporation [1998] AATA 557
Singh and Comcare [2012] AATA 652Otley and Asciano Services [2013] AATA 18
REASONS FOR DECISION
Mr Dean Letcher QC, Senior Member
FACTUAL BACKGROUND
The applicant has been employed by the respondent for 25 years in administrative positions at Sydney suburban mail centres. He worked at the Rockdale Mail Centre until it was closed. Although most of the staff from Rockdale were moved to the newly opened Kingsgrove Centre, he was appointed to Croydon Park and then Strathfield. He says that at these two centres he encountered harassment and bullying (which he had not encountered at Rockdale). He made numerous complaints. He applied for positions at Kingsgrove but was not successful. He was notified of his lack of success on 25 August 2011 and ceased work during the morning the next day. He consulted his local doctor, Dr Nigro, stayed off work and has engaged in acrimonious discourse with Australia Post ever since. He says that Australia Post has refused to acknowledge his need for a settled, peaceful workplace, and instead the respondent has insisted on accepting his re-entry to work only at a stressful or distant mail centre.
LEGAL BACKGROUND
The respondent has accepted that the applicant suffered psychological injury in connection with his work, and has made payments of compensation and medical expenses under s 14 Safety Rehabilitation and Compensation Act 1988 (‘the SRC Act’). A Rehabilitation Program (‘the Program’) under s 37(2)(a) of the SRC Act was prepared and, as a final part of it, the applicant was required to re-commence work on 21 March 2012 at the Waterloo Mail Centre.
The applicant did not re-commence work as required by the Program and as a consequence his benefits were ceased on and from 13 April 2012 and they remain suspended as at the date of the hearing in this matter. Under s 37(7):
“Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.”
Under s 37(8):
“Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension”.
The applicant says he was not without reasonable excuse within the meaning of s 37 of the Act for not complying with the Program. The respondent decided otherwise initially, and affirmed this decision in its reconsideration dated 16 April 2013 and internal review dated 22 May 2012. The applicant now applies to this Tribunal for view of the latter decision.
WITHOUT REASONABLE EXCUSE
‘Reasonable’ is one of those words which take its’ meaning from its’ context. Dictionary definitions of “having reason” or “not absurd” may not be greatly helpful in a vacuum. In recent times in this Tribunal, what is ‘reasonable’ has been debated frequently in the context of s 5A of the SRC Act, in the context of the phrase “reasonable administrative action in a reasonable manner”. But here the question is not reasonable action or manner but “absence of a reasonable excuse”. The range of meanings given this phrase in decided cases is as wide as the subject matter.
In the context of the English Firearms Act offence of possessing a firearm without lawful authority, Auld J in R v Jones [1995] 3 All ER 139 at 141:
“In our view, where there is an honest but mistaken, belief of facts which, if true ,would have constituted lawful authority, it is capable of being a reasonable excuse within the section”.
In New South Wales the Summary Offences Act provided a defence if the defendant had a reasonable excuse for using offensive language. In Conners v Craigie (1994) 76 A Crim R 502 Dunford J held that:
“while it might be appropriate to look at the immediate circumstances against the background of the person’s antecedents, prior experiences, and other related events there must always be something involved in the immediate prevailing circumstances before there can be a reasonable excuse”
Reasonable excuse involves both subjective and objective aspects but these must be related to the “immediate particular circumstances” (at 507):
“When legislatures enact defences involving ‘reasonable excuse’ they effectively give , and intend to give ,to the courts the power to determine the content of such defences . Defences in this form are categories of indeterminate reference that have no content until the court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of the occurrence…”
‘Reasonable’ has been adopted by the law in a range of contexts as imposing an objective standard as a societal norm. In this context, I consider it to mean an excuse which “an ordinary New Zealander” would consider to be reasonable in all the circumstances (A v Police (1999) 2 NZLR 501 at 506 per Baragwanath J).
Where a person was required to produce specified company documents, it was held that an exemption of reasonable excuse might apply only to “physical or practical difficulties in conforming to the statutory notice” (Australian Securities Commission v Ampolex Ltd (1995) 18 ACSR 735 at 748 per Kirby P). Presumably the judge meant that the excuse was limited to physical or practical matters rather than legal arguments.
It can be seen that the breadth of meaning of ‘reasonable excuse’ ranges from the honest but mistaken belief (Proudman v Dayman (1941) 67 CLR 536 ) as in the firearm case, to almost strict liability in the company documents situation.
While considering these interpretations it must be borne in mind that the emphasis in section 37 of the SRC Act is on the excuse rather than the program.
In Australian Postal Corporation v Pascoe [2005] FCA 289 the Federal Court held that the Tribunal had erred in considering whether the program was reasonable rather than the excuse. It held that the subsection required an excuse ‘personal to the employee’. Unless the employee has sought reconsideration under s 38, the program is taken to be appropriate for the employee. Section 38 provides that an employee may request Comcare to review the program and to affirm, revoke or vary it.
In the context of this particular section of this particular Act and Mr Nunez’ claim, the “immediate particular circumstances”, including the purpose of the statute, may be of great significance in assessing the reasonableness. In Taikato v The Queen (1996) 186 CLR 454 at 464 it was said :
“… decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of reasonable excuse is an exception “.
Dawson J also in that case said (at 470):
“A reasonable excuse is no more than an excuse which would be accepted by a reasonable person”.
This, like the statement from New Zealand in A v Police, may state the problem rather than point towards a solution.
In this matter, the Act is a compensation statute - it is usually construed as beneficial and is to be interpreted in favour of the claimant where ambiguity exists. I note that section 37 assumes that there exists a valid requirement to observe a plan endorsed by statute, but that a person may be excused from compliance. I also note that the burden is not on the person to prove that they had a fully exculpatory reason nor a complete excuse, just a ‘reasonable’ excuse.
The phrase “without reasonable excuse” would also seem to put the onus on the employer to prove the absence of even a reasonable excuse. It excludes situations of ‘no excuse at all’ and ‘unreasonable excuse’, and it has been interpreted to exclude a purely subjective or manufactured excuse.
There are a number of decisions discussing this particular section - some finding a reasonable excuse and others finding no such excuse.
In Anita Chowdhary and Comcare [1998] AATA 448 it was not argued that the plan itself was unsuitable. The employee’s doctor said that the person was not fit for any return to work because Comcare would not pay for the physiotherapy and homecare he thought she would need (at [41]). It was held that this advice was:
“merely a convenient pretext for the applicant’s refusal to commence the RTW (Return To Work) which was required [because of] the applicant’s policy of seeking to obstruct attempts to have her return to work on a basis other than one of which she approved”.
The Tribunal referred to the Applicant’s “obstinance, delay and at times outright refusal…in particular to extend work hours beyond 2 or 2.5 hours” and the “obfuscation of attempts to assess her … actual capacity” (at [43]).
Other cases where there was a finding of no reasonable excuse include Freeman and Fleetmastrer Services [2013] AATA 38 (protestations of pain not believed and a refusal to learn new tasks led to a conclusion that the person “just did not want to be there” at the work), Finch and Telstra Corporation [1998] AATA 557 (applicant alleged he was unable to perform ladder work but in fact the plan did not include work with ladders), Sambastian and Australian Postal Corporation [2012] AATA 822 (applicant believed that if his condition was aggravated he would be harassed if he asked for assistance, but had never actually tried to do the particular task and there was no evidence that he could not do it).
Cases where the excuse was held to be reasonable include Singh and Comcare [2012] AATA 652 (applicant was believed when he said he relied on a doctor who had said he was fit for only four hours a day of administrative/clerical work but then unexpectedly signed the plan requiring full-time unrestricted tasks). The Tribunal stated (at [53]):
“If, however, his own doctor confirmed his own opinion that he was unable to work and his doctor, to Mr Singh’s belief, was acting honestly and reasonably in coming to that assessment, it is difficult to see why Mr Singh should be criticized for relying on it”.
In that particular case it was not suggested that it was unreasonable for Mr Singh to refuse to undertake the plan where he was reasonably entitled to believe that his doctor had not agreed to the program (at [23]).
In Otley and Asciano Services [2013] AATA 18, the employee had a serious lower back condition and refused to attend a medical examination saying he needed legal advice on who sought the assessment. Although he declined to attend the assessment on the first occasion, he willingly attended on the second and part of the Tribunal’s finding was that he was willing to return to work.
In Menz and Border Express Pty Ltd [2012] AATA 203, the employee failed to attend a medical, but the employer had breached an undertaking to prepare a “Suitable Duties Plan”, to relocate his work place, to arrange psychological help and to hold a case meeting before requiring the employee to return to work. It was held that these breaches meant the employee had a reasonable excuse for not complying.
From these cases several tentative principles may be seen to emerge:
(a)For a finding that there was, on the balance of probabilities, a reasonable excuse the person should have:
(i)a genuine intention to pursue a program of return to work
(ii)a genuine subjective belief in the factual basis of the excuse
(iii)support by some informed expert opinion of the subjective belief.
(b)In cases where there was a finding of no reasonable excuse it was commonly found that:
(iv)a genuine personal belief in facts unsupported by any expert opinion was insufficient.
(v)an asserted belief professed because of an ulterior motive of not intending to return to work was a disqualification.
Note that the section is phrased so that the decision-maker is required to consider if the person failed to comply “without reasonable excuse”. In the context of a workers’ compensation claim, this would put the onus of proof on balance of probabilities that there was no reasonable excuse on the employer.
Mr Best, counsel for the respondent, pressed strongly on me that the section must mean that the appropriateness of the plan could not be called into question, that it must be accepted and that the Program was correct and appropriate. That appropriateness could be challenged only by an application to review the Program under s 38(2) of the SRC Act.
This view, of course, allows very restricted scope for any reasonable excuse not to comply. It seems to me that Mr Best’s argument means that illness, supervening injury or impossibility of performance could be the only acceptable excuses. I did ask Mr Best what might an acceptable reasonable excuse be, but I was told that this was an inappropriate question and I did not receive any more of an answer.
If an application under section 38 were the only lawful way to question the Program in relation to the particular employee, then it is difficult to see what function the “reasonable excuse” provision in the legislation maintains. It is a canon of statutory construction that if it be possible, effect is to be given to every word or phrase in a statute unless no sensible meaning can be given.
For example in Beckwith v The Queen (1976) 51 ALJR 247 at 249, Gibbs CJ stated “[as]s a general rule a court will adopt that construction of a statute that will give some effect to all of the words which it contains”.
In Hill v William Hill [Park Lane] Ltd [1949] AC 530 at 546-7, the Court stated:
“When the legislature enacts a particular phrase in a statute the presumption is that it is saying something that has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something that would not be there if the words were left out”.
In Minister for Resources v Dover Fisheries (1993) 43 FCR 565 at 574, it was observed that:
“Where two provisions in a single Act initially appear to be in conflict it is improbable that the framers of legislation could have intended to make a provision which has virtually no practical effect. One should look at whether any other meaning produces a more reasonable result”.
In Chu Kheng Lim v Minister for Immigration (1992) 67 ALJR 125 at 128, Mason CJ held that:
“To construe the section in this way, it is suggested, would be to ignore the presumption that words are not used in a statute without a meaning and are not superfluous. Put another way, the argument is that, if possible, some meaning and effect should be given to all the words used”.
Senior Member Shanahan in Corrie and Comcare [2009] AATA 203 found that the applicant had a reasonable excuse for not complying with the plan, because the plan was not appropriate or correct for the individual. Senior Member Shanahan is a surgeon by background and she researched the literature on the applicant’s medical condition and treatment. She formed the view that the rehabilitation plan stipulated a form of exercise which not only caused pain but was contra-indicated for the particular condition. She found that the applicant had a reasonable excuse for not following that part of the plan. This decision appears to me to be persuasive in that it gives effect to the words in s 37. Section 38 deals with setting aside the plan, but that is different to the task of examining whether the person should be excused for not complying with the Program.
DISCUSSION
Mr Nunez gave several reasons why he did not comply with the Program’s direction to work at the Waterloo Centre.
Firstly, he said that he had a reasonable expectation that he would be sent only to Kingsgrove in the first instance because that was what Dr Abeya had agreed with him. Dr Abeya, a psychiatrist retained by the respondent, saw Mr Nunez on 12 March 2012 and issued a report containing the following:
“I believe that work at an office as close to his home as possible would be most advisable given his current state of illness. Yet as Mr Nunez himself expressed, it would be possible for him to restart work in a couple of weeks provided that he comes to an agreement with Australia Post. I anticipate that the major restriction would be more the difficulty in coming to an agreement about a place of work, which would not be entirely due to his psychiatric illness.
From a practical point of view , I feel that Mr Nunez himself would only accept work at Kingsgrove, and I wonder whether this may be possible as an initial place of work in the interest of having this worker back to employment as soon as practically possible. Certainly I do not feel there is any major psychiatric impediment to Mr Nunez working in another place that is close to his home.
Is the employee capable of undertaking his normal administrative duties at an alternative location such as Waterloo? (sic – taken direct from the report)
As stated above, I believe that he needs to start on around two hours a day, or restricted duties initially, but as far as locations go I believe that it should be as close to his home as possible in order to facilitate an easier restarting of work for Mr Nunez. This would need to be negotiated with him but I do not see that there would be a major impediment to his working at a place that was close to his home (Kingsgrove or another suburb) so long as it was not back at Strathfield and not too far away. Once his symptoms have improved to a greater degree, it would then be possible to consider his work at another location.” (at177).
Dr Abeya was not called to give evidence. I doubt that she committed the respondent to a start nowhere else but Kingsgrove. On the other hand, I accept that she gave Mr Nunez the impression that she would recommend a start at Kingsgrove, which was by far the centre closest to his home and staffed by people he knew. I understand that an examining doctor is in a difficult position – not wanting to side with the applicant against the party retaining her but wanting a practical solution. However, it is my opinion that she was likely to have been aware that the respondent was refusing a start at Kingsgrove.
It is not usual for a medico-legal doctor to make any agreement with an applicant intending it to be binding on the respondent. Equally, it is not for the employee to dictate his place and terms of employment. However, in the context of this matter, I believe it was reasonable for the applicant to consider that the respondent would follow the doctor’s advice, and he would be required to start only at Kingsgrove.
Secondly, the applicant said that his treating general practitioner, Dr Nigro, had certified that he was not fit to start work before 23 March 2012 [T80]. He was then told after a consultation on 20 March 2012, that he was only fit to work at “the closest Aust Post position to home” [PT92-188], and was issued with a revised certificate based on the same consultation stating he was “unfit for all work” from 23 March 2013 [PT92-189]. I have no doubt that the last certificate was issued by the doctor at the urging of the applicant. That does not nullify the fact that the applicant was entitled to rely upon medical opinion that he should not comply (as in Corrie), that compliance could be counter-productive or that he was unfit to comply. The doctor gave oral evidence supporting that view.
Mr Best cross-examined Dr Nigro about the date of consultation on the certificate (20 March 2012). He did not, in direct terms, put it to the doctor that he had completed the certificate several days later and falsified the date. I do not find that it was a false date. I noted fax markings on the document before the Tribunal and suggested that an examination of the original might show a date of sending. Nothing further was brought to my attention. The doctor gave reasons why he thought the applicant would have been fit to ‘trial’ at a centre closest to his home, and said that given the applicant’s condition “it may have been successful, may be not”.
Thirdly, the respondent has consistently suggested that the applicant’s request and insistence to start work at Kingsgrove was based only on his own convenience. The respondent’s solicitor advanced that proposition at the directions hearing on 19 August 2013 – it was only a “convenience issue”. The respondent’s counsel put it to the applicant that his reason for insisting on Kingsgrove was so that he could take his daughter to school at the set time and then go on to work. The applicant rejected that, saying that his daughter was aged three at the time and did not attend school. He added that he did intend to deliver his daughter to his mother for care but that did not have to be done at some particular time.
The applicant gave evidence that it was not simply convenience or proximity that made him decline to go to Waterloo. He gave uncontradicted evidence that he felt safe working with people he knew at Kingsgrove from working with them at Rockdale. His perceptions of bullying, intimidation and being unsafe began when Rockdale closed and he was moved to Strathfield, while most or all of the other Rockdale staff went to Kingsgrove. He said, with agitation and tears on several occasions before the Tribunal, that he felt he could not start back at work among people he did not know or who he knew (suspected) to be hostile and discriminatory. He believed he would feel safe and respected commencing work only amongst the people he knew. If not then, he said: “I can’t do it. I just can’t do it.”
I do not believe that mere convenience was the sole or dominant reason for the applicant’s non-compliance. I do not believe the respondent took seriously the applicant’s expressed feelings of fear and intimidation.
Fourthly, the respondent has maintained that, in any event, it could not have employed the applicant at Kingsgrove in March 2012 because there was no vacant position. The applicant maintained in his oral evidence that there was at least one vacant position he could have filled. He had sent the respondent copies of its advertising from the respondent’s own staff publication, describing that vacancy and others [Ex A5]. He told the Tribunal “[t]here were vacancies there that I could have filled. I know the system…”. There was no oral evidence from the respondent rebutting this contention. The respondent’s documents tendered included a statement that there was no vacancy but that was in January, not March [T64], and it was also apparently contradicted by a message later that day that work could be found at Kingsgrove “for a defined period of time” [T69].
It is not possible to make a precise determination of the attitudes of the various participants at particular times in the troubled return to work saga of a man with severe psychological troubles, and an employer with some apparently rigid employees. In October 2011 it was stated that the applicant “will not be offered a position at Kingsgrove” [PT43] and, while the psychiatrist recommended commencement close to his home, in November he was offered only a start at North Ryde (on the opposite side of suburban Sydney).
I have no doubt that the applicant presented a formidable difficulty in arranging a return to full work. Equally, I accept that he had an honest and reasonable belief that a position could be obtained for him at Kingsgrove, on at least a short-term basis to assist him in returning to work. I believe that he understood that the respondent’s psychiatrist had recommended if not undertook that he should be re-introduced to work at Kingsgrove. I accept that he believed his local treating doctor supported a start at Kingsgrove only and, if the doctor signified differently to Australia Post initially, I think his reversal was genuine when he realised that the return planned was not to Kingsgrove.
CONCLUSION
I find, on the balance of probabilities, that the applicant genuinely intended to return to work, that he believed that his local doctor and the psychiatrist felt that this return should start at Kingsgrove, and that he himself strongly (rightly or wrongly) believed that he would not be able to return to work except in a Kingsgrove environment. Further, I find that Drs Nigro and Abeya did believe, and convey to the applicant, their view that the return to work should be at Kingsgrove and not elsewhere.
In the particular circumstances of this case, I find that the applicant’s refusal and failure to attend Waterloo Mail Centre on 21 March 2012, as required by the Rehabilitation Program of 19 March 2012, was not without reasonable excuse. The reviewable decision dated 22 May 2012 is set aside and substituted with a decision that the Applicant did not fail or refuse to undertake the Program without reasonable excuse . The payment of benefits and expenses suspended as a result of the reviewable decision should be made from the date upon which they were suspended. The matter is remitted to the respondent for re-institution of payments and calculation of monies owed.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher QC, Senior Member ..........................[SGD]..............................................
Associate
Dated 7 March 2014
Date(s) of hearing 23 and 25 September 2013 Applicant In person Counsel for the Respondent Mr M Best Solicitors for the Respondent Sparke Helmore
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