GUY GIBSON and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 580
•5 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 580
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2065
GENERAL ADMINISTRATIVE DIVISION ) Re GUY GIBSON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date5 August 2009
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED:
(i)
The application be remitted to the respondent for further determination with the Direction that the applicant is entitled to weekly compensation from 14 December 2007 pursuant to s 19(2) & (3) of the Safety, Rehabilitation and Compensation Act 1988.
(ii)
The respondent shall pay the applicant's legal costs of these proceedings pursuant to paragraph 6.8 of the Guide to the Workers' Compensation Jurisdiction published by the Tribunal.
..............................................
John Handley
Senior Member
CATCHWORDS – Compensation – applicant employed by respondent under short term contracts – injured, incapacitated and returned to work on modified duties – contract expired 14 December 2007 – advised of a further contract of one month duration on 17 December 2007 – contract not forwarded to applicant and not advised of the work duties under the contract – applicant partially incapacitated at 14 December 2007 and subsequently – rehabilitation plan current at that date – applicant did not resign or refuse to sign contract - offer of suitable employment not made – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, s 5(9), s 19, s 19(2), s 19(3), s 19(4)(b) and s 40
Comcare v Rawling [1993] FCA 248
Skoblar v Comcare [1996] AATA 56
REASONS FOR DECISION
Mr John Handley, Senior Member 1. Mr Gibson (the applicant) has applied to review a decision made upon reconsideration by an officer of the respondent on 16 April 2008. It was then decided that the applicant had chosen not to accept an additional offer of one month of contracted employment and from 14 December 2007 he was regarded no longer as an employee. It was further decided that from that date the respondent had no liability in respect of compensation payments for salary.
2. By these proceedings, the applicant asserts that from 14 December 2007 the respondent, as the employer, did not provide him with suitable employment.
3. Subsequent to 14 December 2007 the respondent continues to accept liability for payment of medical and like expenses arising out of treatment of an injury previously suffered by the applicant when in the employ of the respondent.
4. The circumstances giving rise to this application may be summarised as follows.
5. In May 2006 the applicant commenced work with the respondent as a postal delivery officer. He was then advised, and he acknowledged in evidence, that employment would only ever be on a contract basis. That is to say, he was aware that he would not ever be employed on a permanent basis. Subsequent to the commencement of employment the applicant has been engaged from time to time under contracts varying in duration between one month, two months and three months. There was a continuity of contracted employment from May 2006 until 14 December 2007. Whilst there was a variation in duties in the period prior to 14 December 2007, the applicant always worked five days per week at five hours per day between Monday and Fridays only.
6. On 15 May 2006 the applicant was involved in a motor vehicle accident when riding a motorcycle owned by the respondent and when delivering mail. He suffered extensive injuries to his right leg and knee and was subsequently incapacitated.
7. On his return to work his duties were varied by reason of the intervention of a rehabilitation agency contracted to the respondent. The work, as varied, involved the redirection of mail, some sorting work and some counter work at the Rosebud and Mornington Post Offices. The work permitted the applicant to sit and stand at will. Prior to the last contract expiring on 14 December 2007 the applicant was engaged at the Mornington Post Office.
8. On 13 December 2007 the applicant was aware that the contract under which he was then engaged was due to expire on the following day and he brought that to the attention of the manager of the Mornington Delivery Centre, Rebecca Leahy. The applicant said in evidence that she did not respond to that communication. The applicant said he had discussions with other managers as contracts were approaching expiration and his notification to her, that the contract under which he was then engaged was about to expire, was consistent with his previous practice.
9. On 14 December 2007 the applicant attended the workplace and was engaged in mail sorting work between 4 or 4.30am and which was due to conclude at either 9 or 9.30am. He was sorting mail during that time with Ms Leahy. He said that she said nothing to him about an extension of the contract which was due to expire on that day. He finished work at either 9 or 9.30am and left the workplace.
10. On Monday 17 December 2007 the applicant did not attend the workplace. He said that he received a telephone call from Ms Leahy which had a duration of about 10 minutes during the mid-morning. He said that she asked him why he had not attended at work. He said that he had not been provided with a contract. He also said that Ms Leahy persistently said to him that he had resigned. He said that Ms Leahy advised him that she had a contract of one month duration and he asked her whether the respondent would be prepared to provide him with a contract of three months duration. The applicant recalled that Ms Leahy said to him that she would make enquiries and contact him again but said that there had not ever been any subsequent conversation.
11. Subsequent to 14 December 2007 the applicant said that there has been no contact made with him by the rehabilitation officers engaged by the respondent. He said he has not ever been given a contract for employment beyond 14 December 2007 but was aware that a contract dated 16 December 2007, purporting to offer fixed term employment between 14 December 2007 and 17 January 2008, was given to his solicitors, by the respondent’s solicitors, at a conciliation conference subsequent to the lodgement of these proceedings on 19 January 2009.
12. The applicant acknowledged that the contract is dated 16 December 2007 (a Sunday), it is addressed to him at the Mornington Delivery Centre and not his home address and, whilst there is a handwritten comment on the contract being refused to sign. Ceased employment 14/12/07, the applicant said that he did not refuse to sign it on that day or at all because, until he attended the conciliation conference, he had not ever seen it. The applicant said he did not resign from employment, he did not attend the workplace on 17 December 2007 because a contract did not exist or had been provided to him and whilst acknowledging that Ms Leahy had said to him during the course of a conversation by telephone on that day that she had a one month contract, he said he would prefer to have a contract of three months and was awaiting a response from enquiries that she said she would make from persons who are responsible for the preparation of contracts.
13. In cross-examination the applicant was asked to consider a number of contracts that the respondent could locate which covered a substantial part of his contracted employment from the commencement in May 2006. Seven contracts were located. Two contracts were of one month duration. One contract was of two months duration. The remaining four contracts were each of three months duration. The first four contracts (in point of time) were all signed and dated before the commencing date of them. The other three contracts were all signed after each of those contracts commenced. The applicant said that it was not uncommon for him to be asked to backdate those contracts. He agreed that despite not having signed the last three contracts, before the recorded commencement dates, he had worked from the date that each of the contracts purported to commence, he had completed the same duties as previously and, whilst working at the same rate of pay, he said actual payment of salary was frequently delayed and on occasions it was up to two weeks before his salary was restored. At all relevant times, under all of the contracts, the rate of salary paid to the applicant was the equivalent of salary that was being paid to him as a postal delivery officer.
14. After the applicant returned to work following the motorcycle accident, he said he worked at all times under a rehabilitation program which was varied from time to time by regard to the duration of the contracts under which he was employed. He said the rehabilitation was initiated by the respondent and he had always produced medical certificates from his doctors recording the restrictions on the duties that he was able to undertake. He said he was not aware that any rehabilitation program had been extended beyond 14 December 2007. However, he observed a rehabilitation plan (Exhibit R3), having a duration of 26 days from 29 November 2007 to 24 December 2007 which recorded essentially the same restricted duties previously undertaken, but it was not signed by him (unlike previous rehabilitation plans).
15. The applicant agreed that all contracts under which he worked for the respondent were of fixed term, that prior to 17 December 2007 he had not ever stayed away from the workplace until a fresh contract had been signed and he had not ever told any persons in the workplace that he would not return until a new contract had been provided. He agreed that he did not arrive at work on 17 December 2007 because a contract had not been made available to him. He said that he had previously held discussions with officers of the respondent concerning the delay in provision of contracts and the consequent delay in payment of wages and said there has been a build up with pay issues.
16. The applicant said that Ms Leahy knew that he had requested her to enquire whether a three month contract could be made available to him and said she would have known that he had previously worked under three month contracts when he and she had previously worked at the Rosebud Post Office. He denied that he did not attend the workplace on 17 December 2007 because he was not prepared to sign a contract of one month duration only.
17. The applicant was adamant that he had a conversation with Ms Leahy in the workplace on 13 December 2007 concerning the contract expiring on the following day and she then said nothing to him in response. He denied that she then said to him that there is not going to be a problem with a fresh contract and also denied that she said to him that she would look into it. He said that had she used words of that type he would have heard her say them. He said that there was no discussion with her at all about a new contract or the duration of a new contract. He said there was no discussion at all with Ms Leahy on 14 December 2007, he denied that she said to him on that day that a fresh contract was being prepared and that he had said okay, in response.
18. It was then put to the applicant that Ms Leahy would say in evidence that she attempted to contact the applicant on 17 December 2007 on three different telephone numbers but none of them was answered. When it was put to the applicant that the respondent held a record of four telephone numbers at which he could be contacted, the applicant said that he was unfamiliar with two of those numbers. The other two telephone numbers belonged to his mobile telephone and his home telephone. He said that he was at home on 17 December 2007 and that he did have a conversation with her on that day and she then said to him that she had a contract in her possession for him to sign. The applicant denied the anticipated evidence of Ms Leahy that she in fact had a conversation with him on Tuesday 18 December 2007. He also denied that he said to her that he was not working any longer. He said there was no discussion on that day about the work duties he was expected to perform. He said he did not express an interest in returning to work only if he was offered a contract of three month duration. He also denied that he said to her I'm done with Australia Post but did agree that he declined to resign because he understood that his contract had ended by reason of the absence of a new contract. He denied that he wished her well and also denied that he had thanked her for having employed him at both Rosebud and Mornington. He said comments of that type were inconceivable because he was waiting on Ms Leahy to respond to his request for the provision of a three month contract. He said he did not know at the time of that conversation that he would not ever be returning to work with Australia Post. His concern at all relevant times was the duration of a contract beyond 14 December 2007.
rebecca leahy
19. Ms Leahy gave evidence and adopted a statement (Exhibit R5) completed by her on 20 March 2009.
20. Ms Leahy said that on 13 December 2007 she recalled working in the vicinity of the applicant who approached her and said that his contract was to expire on the following day. She said that there was no other discussion between them concerning future employment. On 14 December 2007 she said in passing that she had organised a new contract for him. She assumed that he heard her say those words because he responded by saying okay. She said that no other conversation was conducted between them on that day.
21. On 17 December 2007 she said that he had not attended the workplace and no contact had been made by him with the workplace. She said that she rang three telephone numbers which were recorded in his personnel file but none were answered.
22. On 18 December 2007 she said that she made contact with the applicant by telephone. She said that the applicant told her that he was out of contract and did not need to provide a letter of resignation. When he learnt that a new contract had been prepared but was of one month duration only, she said that he indicated that he wanted a contract of three month duration and she responded by indicating that she would make some enquiries. She also said that he wished me well.
23. A diary maintained by Ms Leahy was received into evidence (Exhibit R4) which recorded notes made by her concerning a number of matters which arose in the workplace. Ms Leahy said that the diary did not record verbatim all words discussed but were used by her as a reminder of matters that were discussed or which emerged in, or arose out of, the workplace. She said the entries made on 18 December 2007 would have been written shortly after her conversation with him on that day and she said that she had no doubt that the first conversation she had with him after 14 December 2007 was on 18 December 2007.
24. The relevant entries in the diary of Ms Leahy are reproduced as follows:
· 13 December Guy out of contract.
· 14 December Organised new contract for Guy Gibson.
· 17 December Guy Gibson didn't come to work. No phone call.
· 18 December Spoke with Guy Gibson asking him why he hadn't come to work for the past two days. He said he wasn't working any longer. I asked him for a letter of resignation and he said he didn't have to give one as his Fixed Term Contract had finished on FRIDAY. He thanked me for the enjoyable experience working for me at both Rosebud and now Mornington and wished me well.
25. In cross-examination Ms Leahy agreed that her statement was true and it was correct. She confirmed the contents of paragraph 9 of that statement that she contacted Network Support to arrange for a further fixed term contract to be prepared. It was prepared and I advised the applicant on 14 December 2007 that the contract was being prepared. Ms Leahy said that she spoke with Area Support at Dandenong – Personnel Office. She also agreed that the contract was eventually prepared by Andrea Sheward at the respondent's premises in Exhibition Street.
26. Ms Leahy said that she attempted to contact the applicant on 17 December 2007 but was unsuccessful. She said that she was certain that she attempted telephone contact with him on that day. She agreed that her diary entry on 17 December 2007 did not indicate that she made a telephone call on that day but reaffirmed that the telephone call was made because that is the procedure. She acknowledged that the page in her diary dated 18 December 2007 has a record on it of the telephone discussion with the applicant. She said that she understood at the time of the discussion that he was still employed and when she understood that he was not returning to work she asked him for a letter of resignation. She said she made that request because it is a formality. She said at the time of the discussion she was in possession of the contract that had been prepared and it was not odd that she considered him then to be employed. She recalled that he asked her to advise him of the duration of the contract and when she told him it was for one month, he asked her to consider a contract of three months duration. She agreed that she said to him that she would look into it but agreed that she did not make those enquiries because she understood at the end of the conversation with him that he was finished at Australia Post. Ms Leahy otherwise agreed that the entry made by her in her diary on the page designated 18 December 2007 was true and she remembered him making the comments that she recorded. She said the conversation was polite. She again reaffirmed that the conversation did take place on 18 December 2007 and that the contract that she said that she then had at the time of the conversation was received by her by email.
27. Ms Leahy was then taken to a copy of an email found at page 78 of the T‑documents from Glenda Stone, an officer of the respondent, which was addressed to her and a number of other officers of the respondent. The email is dated 17 December 2007 and was sent at 3.51pm. The message recorded in the email opens with the words Good afternoon and then the following relevant parts are recorded:
As some of you are aware Mr Gibson did not attend work this morning. When Rebecca enquired why he had failed to advise his non attendance he told her that his contract had expired on Friday. I understand that he also indicated to her that he did not have to formally resign because he is no longer employed. I believe that he has an issue to do with monthly contracts and that he has said that he will not attend the facility to sign a continuation contract. I have advised HR advisory regarding his status. I believe Tony intended to contact Shane to discuss his employment status.
28. When Ms Leahy read the above part of the email of 17 December 2007 she agreed that the entries in her diary were wrong. She agreed that she had spoken with Glenda Stone before the above email had been sent. Despite acknowledging that her diary entries were wrong, she said that her memory is not wrong and said that she does remember the words that the applicant used in the conversation. She said that she relied on her recollection. She agreed that she did have the conversation with the applicant on 17 December 2007.
29. Ms Leahy was then taken to the contract that was eventually prepared and which she said that she had at the time she had the conversation with the applicant. She agreed that it was odd that the new contract was due to commence on 14 December 2007 yet the contract that the applicant had been working under expired on the same day.
30. Ms Leahy also agreed that it was her handwriting written at the top of the contract (Exhibit R1) and which records the words refused to sign. Ceased employment 14/12/07. Ms Leahy said that she recorded those words on the day that the applicant refused which she said was the day that she had the conversation with him. When she was challenged that the word refused was not ever mentioned by her in her evidence or in her statement but rather she had used the word resign in evidence she said that resigned was what she meant to say when she wrote the word refused.
31. Ms Leahy was then taken to another email from Glenda Stone dated 21 December 2007, at page 79 of the T-documents, which was addressed to Ms Leahy and other officers of the respondent and which has as its opening paragraph Has Mr Gibson's employment status been resolved? The second last paragraph opens with the words If he is still employed . . . and the last paragraph opens with the words If he is not still employed . . . . Ms Leahy agreed that it would appear that Glenda Stone was not clear about the employment status of the applicant and she was in the dark.
32. Ms Leahy was then taken to a letter written by an officer of CoWork Pty Ltd, being the rehabilitation consultant to the respondent, dated 4 January 2008. The person to whom the letter is addressed is not recorded but it is in the nature of a report. It advises that the applicant's occupational rehabilitation will now be closed. The second paragraph of the report records Mr Gibson was employed under a fixed term contract by Australia Post which was due for renewal on the 14/12/07. I have been advised that Mr Gibson has elected to [sic] not to sign the new contract which was offered to him on the 14/11/07, therefore he is no longer employed with Australia Post.
33. Even assuming that the date 14/11/07 is in error and should be 14/12/07, Ms Leahy said that she did not know where the rehabilitation provider would have learnt that the applicant did not sign a contract which was offered to him on 14 December 2007. Finally, Ms Leahy was taken to the contract at R1 where at paragraph 3 (emphasis reproduced) it records that:
Your employment under this contract will cease on the specified date unless an offer is made in writing to you to extend the period of your employment. Any oral representations of any kind indicating that any further contract may be offered are not to be taken as forming any part of the conditions of your employment.
Ms Leahy agreed that paragraph (which appears in all of the previous contracts completed by the applicant) would indicate that the applicant's employment with the respondent did end on 14 December 2007.
conclusion and reasons for decision
34. In making the findings of fact which will follow below I am satisfied that the applicant was a witness of truth. The only other person to give evidence was Ms Leahy the manager of the respondent's facility at Mornington. She relied on a diary completed by her as to the occasion of a conversation with the applicant which was established as being incorrect. She then explained, whilst acknowledging that the diary was wrong, that her memory was not wrong. I doubt that belief. The email found at page 78 dated 17 December 2007 from Glenda Stone refers to her having knowledge of the applicant not having attended work on that day and it continues by referring to enquiries made by Ms Leahy. That indicates to me that Ms Leahy had the discussion with Ms Stone after she had the discussion with the applicant on that day. On balance I find that little weight can be attached to the diary held by Ms Leahy or to the accuracy of her memory.
35. Having regard to the evidence heard in these proceedings, the documents lodged pre-hearing and the documents exhibited, I am satisfied and find as follows:
(i)Between May 2006 and 14 December 2007, the applicant was employed by the respondent under contracts of fixed term varying between one, two and three months’ duration.
(ii)On 15 May 2006 the applicant suffered injuries in the course of his employment delivering mail and whilst riding a motorcycle. He was incapacitated for a period of time and returned to work on alternate duties and worked those duties until 14 December 2007 under a rehabilitation plan devised by CoWork Pty Ltd, an agent of the respondent.
(iii)After the applicant returned to work the duties provided by the employer constituted suitable employment as defined by s 4 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and as that expression is found within s 40 of the SRC Act.
(iv)Immediately prior to 14 December 2007, the applicant was working under a contract of three months’ duration having commenced it on 15 September 2007 (R2).
(v)On 13 December 2007, the applicant notified Ms Leahy that his contract was due to expire on the following day.
(vi)Contrary to paragraph 9 of the Statement of Ms Leahy, a further fixed term contract was not prepared on 13 December 2007 nor was it being prepared on either 13 or 14 December 2007.
(vii)A contract of employment was prepared on 17 December 2007 and was forwarded to the applicant at the Mornington Delivery Centre (refer Affidavit of Andrea Sheward at paragraph 6).
(viii)The applicant did not attend the workplace on 17 December 2007 or on any other day subsequently. The contract prepared by Ms Sheward was not ever forwarded to him at his residential address.
(ix)Contrary to the entries in the diary maintained by Ms Leahy, she did contact and speak with the applicant on 17 December 2007 at, or shortly after, 9.30am when mail sorting duties would have concluded. There was no evidence from Ms Sheward of when she forwarded the contract to the Mornington Delivery Centre on 17 December 2007 and it may be thought unlikely that it would have been forwarded at, or before, 9.30am. Nonetheless it would appear that Ms Leahy was aware that a contract was, or was being, prepared which offered employment of one month duration commencing on 14 December 2007 and concluding on 17 January 2008.
(x)When the applicant learnt that the contract was of one month's duration only, he indicated a preference to have a contract of three months’ duration. Ms Leahy recorded in her Affidavit (paragraph 13) that if that (a contract of one month) was a problem for him I could look into it but he would first need to come back to work. In cross-examination Ms Leahy acknowledged that she said to the applicant that she would look into it but agreed that she did not. That is to say she did not make any enquiry of officers of the respondent whether a contract having a duration of greater than one month would be made available. She said she did not make that enquiry because she was satisfied, having had the discussion with the applicant, that his employment had ended.
(xi)I am not satisfied that the applicant did give any indication to Ms Leahy that he no longer intended to be an employee nor did he say to her that would not enter into an employment contract with the respondent. Rather, I prefer his evidence that the telephone call was concluded by him having an anticipation that Ms Leahy would respond to his request to have a contract of three months’ employment provided. In those circumstances I am also satisfied that it was appropriate for the applicant not to offer any letter of resignation, because he had not resigned.
(xii)I am not satisfied that the applicant refused to sign the contract forwarded to the Mornington Mail Centre on 17 December 2007 nor am I satisfied that he ceased employment. The handwritten notation on the contract forwarded on 17 December 2007 is very odd and the explanation for the words used is equally mysterious. Ms Leahy acknowledged that the applicant did not refuse to sign the contract but rather she intended the word to mean resign. Additionally, the applicant did not refuse to sign the contract because it was not made available to him to consider or sign. The notation on the contract completed by Ms Leahy bears the date 14/12/07. The contract did not exist on that day. It was not prepared nor produced until 17 December 2007. No explanation was given why that date appears. Subsequent to 17 December 2007 the applicant did not refuse to sign that contract because it was not produced to him until it was given to his solicitors at a conciliation conference convened at the Tribunal on 19 January 2009. Subsequent to 17 December 2007, the applicant was not ever advised whether his request for a three month contract was accepted or refused. It was not until he heard the evidence of Ms Leahy at the hearing of these proceedings that he learnt that she had not ever enquired whether such a contract would be made available to him.
(xiii)Despite her evidence in chief and the contents of her Affidavit, Ms Leahy acknowledged in cross-examination that the employment of the applicant ended on 14 December 2007. She made that concession having regard to the history of the above events and by regard also to paragraph 3 of the contract of 17 December 2007 which in all respects is relatively identical to all previous contracts entered into by the applicant. It records Your employment under this contract will cease on the specified date unless an offer is made in writing to you to extend the period of your employment. Any oral representations of any kind indicating that any further contract may be offered are not to be taken as forming any part of the conditions of your employment.
(xiv)Despite the belief of Ms Leahy that the employment of the applicant ended on 14 December 2007, that knowledge was apparently not held by Ms Stone having regard to the contents of her email of 17 December 2007 (page 78), her email of 21 December 2007 (page 79) and her letter to the applicant of 28 December 2007 (page 80) where she reports to him that Mr Jones who examined him on 13 December 2007 was of the opinion that he had an ability to continue work on restricted duties. In that letter to the applicant she concluded at present, liability for your claim continues unchanged. In an email of 28 December 2007 addressed to Ms Leahy and other officers of the respondent (page 81), Glenda Stone requested advice of the employment status of the applicant.
(xv)It would appear that the respondent, for the first time, decided on 3 January 2008 that the employment of the applicant ended on 14 December 2007. On that date an officer of the respondent Lesley Lidgerwood wrote an email indicating that the applicant was offered a contract but he elected to cease the employment relationship (page 81). Ms Buckley the rehabilitation provider apparently was given advice of the cessation of the applicant's employment with the respondent because on 4 January 2008 she wrote a memorandum recording that his rehabilitation will now be closed because he elected to not to [sic] sign the new contract which was offered to him on 14/11/07 [sic] – refer earlier. On the same day, Ms Buckley wrote to the applicant's treating general practitioner and advised him that the applicant had resigned from his employment effective on 14 December 2007 (page 83). On 7 January 2008 Glenda Stone wrote to the applicant (page 84-85) and advised him that he had elected not to accept work on a temporary contract basis.
(xvi)Despite all of the above explanations by officers of the employer and its rehabilitation provider, on no occasion has any decision been made that the applicant had been undertaking a rehabilitation program and that all reasonable steps to continue to provide him with suitable employment had been taken by the employer (refer s 40 of the SRC Act). Despite a belief that the employment had ended, the applicant remains an employee for the purposes of s 40, refer s 5(9) of the SRC Act. Immediately prior to 14 December 2007, the applicant was working under modified duties, which constituted suitable employment, by a rehabilitation plan which commenced on 29 November 2007 and which was due to expire on 24 December 2007.
(xvii)Subsequent to the opinions expressed by Mr Jones, who examined the applicant on behalf of the respondent on 13 December 2007 (refer para 35 (xiv) earlier), and the rehabilitation plan, dated 29 November 2007, the applicant had a limited ability to earn and was entitled to compensation pursuant to s 19(2) & (3) of the SRC Act.
(xviii)The contract of one month purporting to have been offered with effect (in error) from 14 December 2007 was not sent to the applicant’s home address and its terms were not known. The duties the applicant would have been expected to perform were not notified to him by Ms Leahy during the conversation on 17 December 2007
36. In all of the circumstances the respondent failed in its duty to provide the applicant with suitable employment. Even if the applicant had made a decision to resign, and I am satisfied that he did not, the obligations of the employer under s 40 are not ended (refer Comcare v Rawling [1993] FCA 248 at para 19; Skoblar v Comcare [1996] AATA 56 at para 38). The respondent is not entitled to any relief from the provisions of s 19(4)(b) of the SRC Act because the applicant, the employee, did not receive an offer of suitable employment. Accordingly he did not fail to accept such an offer. The applicant is therefore entitled to compensation pursuant to s 19(2) & (3) of the SRC Act.
37. In those circumstances the decision under review will be set aside and a decision as above will be made in substitution.
38. Additionally I am satisfied that the applicant is entitled to have his legal costs paid pursuant to paragraph 6.8 of the Guide to the Workers' Compensation Jurisdiction published by the Tribunal.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: .....................................................................................
Grace Carney Personal AssistantDate of Hearing 9 July 2009
Date of Decision 5 August 2009
Counsel for the Applicant Mark Carey
Solicitors for the Applicant Slater & Gordon
Counsel for the Respondent Joe Ferwerda
Solicitors for the Respondent Frenkel Partners
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