Goodwin and Australian Postal Corporation

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2002] AATA 694

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)          No N2000/100
  )          No N2000/551

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAHAM JOHN GOODWIN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member
Ms N Isenberg, Member

Date15 August 2002

PlaceSydney

Decision

The tribunal decides that it has no jurisdiction to entertain application number N2000/100.

The tribunal affirms the decision under review in application number N2000/551.

The applicant is entitled to no costs in respect of either application for review.

[SGD] M J SASSELLA           

Senior Member

7.      In documents T142 to T145 in early September 1999 Australia Post officers are seen to be considering what to do with Mr Goodwin.  Managers were seen to be reluctant to find selected duties for him to perform but were under pressure to do so because it was thought that he was preparing to lodge a claim for a psychiatric condition.  It appears that there was not much in the way of duties for him to perform.  It also appears that no thought was given to finding him a program he could undertake in or near Bellingen. 

8. On 1 November 1999 a direction was issued to Mr Goodwin to return to work on 15 November 1999 at Kirrawee or he would be deemed to have abandoned his Australia Post employment (T154). This letter was revoked on 12 November 1999 because of medical material Australia Post had received (T157). On the same day, 12 November 1999, a delegate purported to decide to suspend Mr Goodwin’s rights to compensation in accordance with s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) (T156). 

9.      This letter was ill-conceived in several respects. 

·First, s 37(7) operates automatically, without the need for a decision by a delegate, where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee, to suspend compensation entitlements[1]. The letter should merely have informed Mr Goodwin that s 37(7) had begun to operate and his rights had been suspended.

·Second, an employee’s rights to reconsideration of rehabilitation decisions arise under s 38 of the Act, not s 62 as the writer of the letter put to Mr Goodwin. However, absent a decision about another matter, there is no decision that can be reviewed where s 37(7) operates. There can, therefore, be no proper reviewable decision under s 38 of the Act in respect of a suspension under s 37(7) of the Act[2]. Section 38 may be of use in relation to the decision to require an employee to engage in a rehabilitation program in accordance with s 37(1). That is when the employee should protest the decision, ie before he or she is in breach of the requirement.

[1] Trajkowski v Telstra Corporation (1998) 81 FCR 459; Chowdhary v Bayne (1999) 29 AAR 100; Re Quis and Comcare (2001) 64 ALD 485.

[2] See Re…