Geoffrey Carpenter and Comcare
[2012] AATA 260
•4 May 2012
[2012] AATA 260
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0021
Re
Geoffrey Carpenter
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis
Date 4 May 2012
Place Adelaide The tribunal remits the matter to Comcare to calculate the applicant’s entitlement to compensation on the basis that his normal weekly earnings are to be calculated by reference to his income from the Australian Construction Service in accordance with the provisions of ss 8, 9 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
................ [Signed] ..................
Deputy President D G Jarvis
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant deemed to be suffering stress related illness with effect from 1990 in consequence of events in other employment prior to 1984 with Bureau of Meteorology – held that normal weekly earnings should be calculated by reference to earnings with later employer.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 8, 9 and 19
CASES
Re Carpenter and Comcare (2010) 116 ALD 190
REASONS FOR DECISION
Deputy President D G Jarvis
4 May 2012
This matter is a further aspect of disputes between the applicant, Geoffrey Carpenter, and Comcare, which unfortunately have continued for more than 20 years, and have their origin in events that occurred about 30 years ago.
The present proceedings arise out of a claim for compensation made by Mr Carpenter in April 2006. He claimed that he had an underlying generalised anxiety disorder contributed to by his employment with the Bureau of Meteorology (BOM), in that the BOM had taken certain improper actions in administering a system for transferring field officers and had engaged in victimisation, bullying and harassment. The claim was initially rejected by Comcare, and its rejection was affirmed on review and on subsequent reconsideration. Mr Carpenter applied to this tribunal for review. I found that Mr Carpenter honestly believed that he had been victimised during his employment by the BOM and also honestly believed that a number of other incorrect, unfair or illegal practices had occurred, and I found that his stress-related illness was contributed to in a material degree by his employment with the BOM: see Re Carpenter and Comcare (2010) 116 ALD 190. I accordingly decided that Comcare was liable for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), including compensation for permanent impairment, and I assessed the degree of impairment at 10%. I remitted the matter to the respondent for reconsideration in accordance with my reasons for decision.
The reconsideration by Comcare entailed considering the periods for which Mr Carpenter was incapacitated for work and whether he was totally or partially incapacitated, and then determining the amount of the weekly incapacity payments to which Mr Carpenter was entitled during the periods of incapacity. A delegate of Comcare made a primary decision about these issues in September 2010, and a review officer made a further determination in December 2010 following a request for reconsideration by Mr Carpenter. Mr Carpenter has applied to this tribunal for review of the determination by the review officer.
Mr Carpenter had commenced working with the BOM in 1975 and continued working there until 1983 or 1984. After that he was employed by Australian Construction Services (ACS) until July 1992, when he accepted voluntary redundancy. It is common ground that he had periods of incapacity for work at different times after 1992.
ISSUE BEFORE THE TRIBUNAL
As a result of alternative dispute resolution processes that preceded the hearing before me in the present proceedings, the parties reached agreement on the periods and extent of incapacity for work during those agreed periods, but could not agree on the calculation of weekly incapacity payments to which Mr Carpenter is entitled under the SRC Act. The issue before the tribunal is whether Mr Carpenter’s normal weekly earnings should be calculated by reference to his earnings with ACS during the period of two weeks before the date when he sustained his injury (deemed by s 7(4) of the SRC Act to have been on 29 November 1990), or by reference to the rate of earnings that he would have received from the BOM if his employment by the BOM had continued until that date and if he had then held the position of a Technical Officer Grade 2. Comcare contends that the former proposition is correct, whereas Mr Carpenter contends that the latter proposition is correct.
BACKGROUND FACTS
The history of Mr Carpenter’s employment with the BOM and of his concerns regarding the employment practices of the BOM are set out in detail in my earlier decision. It is not necessary for those matters to be repeated in detail in the present decision. Suffice to say that he commenced work with the BOM in 1975, but by March 1983, he could no longer cope with the stressors resulting from the position that he then occupied with the BOM and from management response to issues he had raised concerning the legality of the system employed by the BOM for transferring field officers to different locations. He said that by March 1983, he had been transferred to different locations seven times in as many years, and he was worried about another transfer from his then position at Edinburgh, and so he took a down-grade to a clerical position to avoid being transferred yet again.
After he took up his clerical position at the BOM, Mr Carpenter proceeded to raise many and varied concerns, initially with the management of the BOM, then with the Grievance and Appeals Bureau and later with the Merit Protection and Review Agency (MPRA), and in his own assessment, he became a whistle-blower. He continued to pursue his grievances, but in November 1990 he received a copy of a letter from the MPRA which made it clear that it regarded his appeal as closed. Soon afterwards, on 29 November 1990, Mr Carpenter suffered a breakdown due to a stress condition, and sought medical treatment.
In his evidence in the present proceedings, Mr Carpenter reiterated that the events at the BOM, which ultimately resulted in his breakdown in November 1990, had forced him to withdraw from the specialist position that he then held with the BOM at Edinburgh in March 1983. He said that if it had not been for that forced withdrawal from his then position, he would have continued with the BOM and that by November 1990 he would have been employed by the BOM as a Technical Officer Grade 2. He contended that the rate of salary of that position, including earnings, penalties and additional leave for working shift work on a 24-hour/7-day roster, would have been significantly higher than that applicable to his then ASO3 position with ACS in November 1990, being the down-graded position he was forced to occupy to avoid “maladministration” by the BOM.
The agreement arrived at between the parties during the alternative dispute resolution processes as to Mr Carpenter’s incapacity for work and resulting entitlement to compensation in the period after he accepted redundancy from the ACS in July 1992 is as follows:
(a)from July 1992 until 13 June 1994, he was not incapacitated for work and had no entitlement to compensation under s 19 of the SRC Act;
(b)from 14 June 1994 until 10 July 1995, he was incapacitated for work, but was able to earn an income in suitable employment for at least eight hours per week;
(c)from 11 July 1995 until 31 July 1998, he was totally incapacitated for work, and had no ability to earn for the purposes of the Act; and
(d)from 1 August 1998 to date, he was incapacitated, but able to earn an income in suitable employment for at least eight hours per week.
The parties’ above agreement was recorded in a consent decision made by this tribunal on 4 January 2012 pursuant to s 34D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
PARTIES’ CONTENTIONS
Mr Carpenter contends that it would be unfair and inappropriate to calculate his normal weekly earnings by reference to his down-graded ASO3 position at the ACS, because if he had not been subjected to what he described as a series of illegal or improper acts at the BOM, he would not have suffered his illness, and would have remained on his chosen career path and on a significantly higher income. He also drew attention to how long the grievance process that he had instituted took to be completed. He emphasised the aspect of unfairness by contending that within a few days of the deemed date of his injury, that is, 29 November 1990, the BOM had “published a report, some 5 years in the making, which concluded that the Field Officers Pool was fiction, as there was no explanatory documentation relating to its use in the Public Service.” He also said that that report effectively resolved his ongoing grievance, and that he always intended to return to his career path with the BOM, and would have done so if the relevant investigations had been completed in a timely manner.
Counsel for Comcare, Mr S Cole, contended that the provisions of the SRC Act were clear, and required normal weekly earnings to be determined by reference to Mr Carpenter’s employment with the ACS during the relevant period prior to the deemed date of his injury, namely 29 November 1990.
CONSIDERATION
Both parties agree that the weekly incapacity payments to which Mr Carpenter is entitled are to be calculated in accordance with s 19 of the SRC Act, by reference to the formula provided for in that section.
The formula in s 19 entails determining the value of “NWE”, which is defined in s 19(2) to mean “the amount of the employee’s normal weekly earnings.” That amount in turn is to be derived from a formula appearing in s 8 of the SRC Act, and depends on the average number of hours worked in each week by the employee in his or her employment “during the relevant period”. Section 9 then explains how the relevant period is calculated, and provides relevantly as follows:
“(1)For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.”
Provision is made in s 8(5) of the SRC Act for circumstances where the normal weekly earnings calculated in relation to the relevant period would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury. However, this section only operates where the unfairness arises because of the shortness of the relevant period. The section provides as follows:
“(5)Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.”
Section 8(5) has no application to the circumstances that Mr Carpenter relies upon in support of his contention that the formula in s 8 produces an unfair result in his case.
I also note that s 8(4) applies where it is impracticable to calculate the normal weekly earnings of an employee before an injury because of the shortness of the relevant period. This subsection provides for normal weekly earnings are to be calculated by reference to the earnings of another employee performing comparable work. Section 9 also includes, in subsections (2) and (4), provision for disregarding parts of the “relevant period” in certain circumstances, such as changes in award rates, or absence from employment, during that period. However, unfortunately for Mr Carpenter, none of the above subsections apply to his circumstances, where the deemed date of injury was so long after the occurrence of employment-related events that caused him to downgrade his employment status.
Mr Carpenter also contended in effect that he had suffered loss as a result of a series of illegal or improper acts by the BOM, and his compensation should not be reduced as a result. However, Comcare, and this tribunal standing in the shoes of Comcare when determining applications for review of Comcare’s decisions, must apply the provisions of the SRC Act. Under s 43(1) of the AAT Act this tribunal is able to exercise all the powers and discretions that are conferred (in this case) on Comcare by the SRC Act, but has no general jurisdiction to determine claims for compensation or damages which Comcare has no power to determine under the SRC Act. Further, there is no statutory power for Comcare or this tribunal to increase the rate of compensation payable to Mr Carpenter, in the circumstances raised by his contentions, beyond the amount based on his earnings with the ACS in the relevant period prior to the deemed date of his injury, namely 29 November 1990.
DECISION
The tribunal remits the matter to Comcare to calculate the applicant’s entitlement to compensation on the basis that his normal weekly earnings are to be calculated by reference to his income from the Australian Construction Service in accordance with the provisions of ss 8, 9 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis
..... [Signed] .....
Associate
Dated 4 May 2012
Date(s) of hearing 27 March 2012 Applicant In person Counsel for the Respondent Mr S Cole Advocate for the Respondent Mr M La Vista Solicitors for the Respondent Australian Government Solicitor
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