Freightcorp v Duncan

[2000] NSWCA 309

CITATION:	FREIGHTCORP v DUNCAN [2000] NSWCA 309
FILE NUMBER(S):	CA 40998/99
HEARING DATE(S):	6 October 2000
JUDGMENT DATE:	1 November 2000
PARTIES :	FREIGHTCORP (Appellant) v STEPHEN JAMES DUNCAN (Respondent)
JUDGMENT OF:	Handley JA at 1; Beazley JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	40880/99
LOWER COURT JUDICIAL OFFICER :	Armitage CCJ

COUNSEL:	A: Mr G M Watson, Mr M H Best R: Mr M B Inglis
SOLICITORS:	A: Sparke Helmore R: Commins Hendriks
CATCHWORDS:	Workers' Compensation - redundancy - whether, by accepting offer of redundancy, the worker rejected suitable employment - whether the worker's action was unreasonable - meaning of "obtains suitable employment" discussed but not determined.
LEGISLATION CITED:	Workers Compensation Act 1987, s 40 Compensation Court Rules, Pt 11 r 3
CASES CITED:	Fazlic v Milingimbi Community Inc. (1982) 150 CLR 345
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40998/99
CC 40880/99

HANDLEY JA
BEAZLEY JA
DAVIES AJA

Wednesday 1 November 2000


FREIGHTCORP v Stephen James DUNCAN


JUDGMENT

1    HANDLEY JA: I agree with Davies AJA.

2    BEAZLEY JA: I agree with Davies AJA.

3 DAVIES AJA: This appeal is from an award of the Compensation Court of New South Wales constituted by his Honour Judge Armitage. Under s 32 of the Compensation Court Act, 1984, the appeal is limited relevantly to a point of law.

4    Relevant provisions of the Workers Compensation Act, 1987 ("the Act") provide as follows:

40 (1) Entitlement . The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker's weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.

(2) Calculation of reduction in earnings of worker - general . The reduction in the worker's weekly earnings is (except as provided by this section) the difference between:

(a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and

(b) the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000).
(2A) Calculation of reduction in earnings of worker - workers rejecting suitable employment. If the worker has unreasonably rejected suitable employment, the reduction in the worker's weekly earnings is the difference between:

(a) the current weekly wage rate for the worker's pre-injury employment (but not exceeding $1,000), and

(b) the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).
(2B) For the purposes of subsection (2A), a person unreasonably rejects suitable employment if:

(a) a period of 28 days has elapsed since the worker was offered suitable employment by any person and the worker has unreasonably refused or not accepted the offer (whether or not the offer was available during the whole of that period), or

(b) the person obtains suitable employment with any person but subsequently unreasonably discontinues that employment.
(3) Ability to earn in suitable employment . The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:

(a) the determination is to be based on the worker's ability to earn in the general labour market reasonably accessible to the worker,

(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.

5    The worker, Stephen James Duncan, was employed by Freightcorp as a Station Assistant, class 1. His home station was Junee but he was classified as permanent relief and performed relief duties at Cootamundra. Some of his duties involved cleaning station platforms and offices and some involved driving a vehicle for the purpose of transporting train crews to various locations along the rail network.

6    On 11 December 1997, Mr Duncan was driving a vehicle on a platform. He lost control, apparently because of potholes and corrugations in the platform, with the result that the vehicle drove off the platform and landed on its side on the railway line. Mr Duncan hit his head on impact.

7    As a result of the accident, Mr Duncan suffers severe and disabling symptoms in his neck together with fairly severe headaches, which continue to occur on a regular basis. The learned trial Judge accepted the evidence of a Dr Fielding that Mr Duncan had suffered a disc-prolapse at the C6/7 level. Although Mr Duncan went back to work after a month, he found difficulty with the rotation and soreness of his neck and, on occasions, received help with the driving from members of the train crews who were passengers in his car. The trial Judge concluded that Mr Duncan was partially incapacitated for the work he was performing as a Station Assistant, that before the accident he had performed those duties without difficulty, but after the accident he performed them with considerable difficulty.

8    In the middle of 1998, a workplace reform procedure was implemented within the Operations Division, South-West, based at Junee. As part of the process, a number of depots within the area were downsized, certain positions were defined to be excess to requirements, jobs were redesigned and new positions were created with revised workloads. Mr Simpson, Personnel Officer of the Operations Division, South-West, said that the old establishment prior to that was virtually done away with. One of the positions which was redesigned was that of Station Assistant. The new position created was Terminal Operator, level 1 division 1. This position required not only work of the nature performed by Mr Duncan but also the operation of a computer terminal.

9    When a position was abolished or redesigned, the worker was given the option of retraining, redeployment or voluntary redundancy. Mr Simpson gave evidence that all surplus applicants had an opportunity to apply for and go through a selection test for available positions. Mr Simpson and his colleague, Mr Austin, interviewed employees such as Mr Duncan whose position had been abolished or redesigned.

10    A position of train driver was available but it was thought by both Mr Duncan and the personnel officers that Mr Duncan would not be suitable having regard to his neck problems and his safety record. Mr Duncan applied for the position of Terminal Operator, level 1 division 1 at Junee. However, he was not successful in obtaining that position. Mr Simpson gave evidence that he did not identify any specific job for which Mr Duncan was suitable. After failing to obtain his redesigned position, Mr Duncan accepted the offer of voluntary redundancy.

11    Mr Simpson gave evidence that it was the policy of Freightcorp not to implement compulsory redundancies and that two employees had in fact remained on the payroll as surplus employees without specific jobs. Mr Simpson said that they did not perform work in an authorised position, that they did work they were requested to do, but that there were periods when they were not really gainfully employed. Such people were described as heading towards the "vegie patch". It is not in dispute that, although it was the policy not to implement compulsory redundancies, nevertheless, the policy was to pursue redeployment, retraining or redundancy. Mr Simpson said that Mr Duncan "wasn't exactly told [of] the vegie patch".

12    On these facts, the trial Judge assessed the amount that Mr Duncan would have earned, but for the injury, at $650 per week, the salary of a Terminal Operator, level 1 division 1. The trial Judge thought it probable that Mr Duncan would have succeeded in obtaining the Terminal Operator position had he not suffered the neck injury in the 1997 accident. The trial Judge further concluded that Mr Duncan presently had an ability to earn $175 per week based on twenty hours per week as a console operator in a self-service service station.

13 The appeal raises no issue as to the mathematics of either of these sums, which resulted from the calculations required by s 40(2) of the Act. However, counsel for Freightcorp has submitted that Mr Duncan's acceptance of voluntary redundancy should have been taken into account and that, had Mr Duncan not accepted voluntary redundancy, he would still be employed by Freightcorp, being paid by Freightcorp like the two "vegie patch" employees mentioned in the evidence.

14 The basis of this adjustment was said to be subss (2A) and (2B)(b) of s 40. It was said that Mr Duncan had suitable employment with Freightcorp and unreasonably discontinued that employment. Reliance was placed upon Mr Simpson's evidence that, in 1998, the policy had been not to make redundancy compulsory.

15    However, Mr Duncan's position was being abolished and being replaced by the new position of Terminal Operator, for which position Mr Duncan was an unsuccessful applicant. Mr Duncan was not offered any suitable employment which he rejected, unreasonable or otherwise. The offers that were made to Mr Duncan were of redeployment in a suitable position, if one could be found, or voluntary redundancy. He was given the opportunity of applying for a suitable position if he could find one. He applied for the position which appeared feasible, but he was not successful in obtaining it. No specific job was identified as being suitable for him. Voluntary redundancy was offered and he accepted it.

16 The defence available under subss (2A) and (2B)(b) of s 40 was not in fact raised in the answer filed by the respondent, as Part 11 r 3 of the Compensation Court Rules requires, perhaps because s 40 was not specifically mentioned in the application. Nor were subss (2A) and (2B) raised specifically by counsel appearing for Freightcorp before the trial Judge. It is clear, however, from the careful reasons of the decision of the trial Judge, that he was of the view that Mr Duncan did not reject suitable employment. The trial Judge said that it was not surprising that, when the avenues of retraining and redeployment had failed, Mr Duncan accepted voluntary redundancy. The trial Judge found specifically that there was no evidence that Mr Duncan was offered duties in the "vegie patch". The trial Judge said that Mr Duncan's decision to accept the voluntary redundancy seemed to have been entirely reasonable.

17 It follows that his Honour correctly applied the provisions of s 40(2) and (3) of the Act. Subsections (2A) and (2B) did not apply for there was no employment which Mr Duncan refused, unreasonably or otherwise.

18    I need not determine whether the word "obtains" in s 40(2B)(b) refers only to employment obtained after the worker suffered injury or whether the words "unreasonably discontinues that employment" would ever encompass a voluntary retirement, which is a consensual act involving both employer and worker. In any event, the provision requires that there be an unreasonable rejection or discontinuation by the worker of suitable employment. In the present case, that did not happen. Freightcorp proposed to abolish Mr Duncan's position and, reasonably, he accepted the offer of voluntary redundancy made to him.

19    I should note that an assessment of the reasonableness of a worker's refusal depends upon the worker's knowledge at the relevant time. Cf Fazlic v Milingimbi Community Inc. (1982) 150 CLR 345. Although Mr Duncan was aware that redundancy was not compulsory, he was informed that he would lose his position which was redesigned and that he had certain options, one of which was redundancy. In the light of the information given to him, his acceptance of the redundancy offered was reasonable, as the trial Judge found.

20 In the present case, the trial Judge correctly applied s 40 according to its terms.

21    The appeal should be dismissed with costs.

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