Jarrett and Comcare (Compensation)
[2024] AATA 1494
•6 June 2024
Jarrett and Comcare (Compensation) [2024] AATA 1494 (6 June 2024)
Division:GENERAL DIVISION
File Numbers:2023/3468
Re:Karl Jarrett
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:6 June 2024
Place:Brisbane
The Tribunal sets aside the decision under review and in substitution decides that:
(a)the relevant period for the purposes of section 8 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) is 2 weeks; and
(b)the average number of hours of overtime worked in each week by the Applicant in his employment during the relevant period (NH) for the purposes of section 8(2) of the SRC Act is 13.98 hours.
...............................[SGD]......................................
Member D Mitchell
Catchwords
COMPENSATION – accepted injury – incapacity payments – normal weekly earnings – overtime – relevant period – what period prior to the date of injury should be relied on as the relevant period – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Comcare v Nicolas (2014) 225 FCR 369
Zegura and Comcare [1998] AATA 604
REASONS FOR DECISION
Member D Mitchell
6 June 2024
INTRODUCTION
Mr Karl Jarrett (the Applicant) is employed by the Department of Social Services.
Pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), the Respondent accepted liability for the Applicant’s adjustment disorder with mixed anxiety symptoms and depressed mood with a deemed date of injury of 22 February 2021 (accepted condition).[1]
[1] T Documents, T4, pages 22-25, Section 42C Decision.
The Applicant has at various times been unable to work due to his accepted condition. Pursuant to section 19 of the SRC Act the Respondent is liable to pay the Applicant compensation in respect of his incapacitation from work in accordance with the prescribed formulas (known as incapacity payments). The starting point of the formula is the amount of a persons normal weekly earnings (NWE).
Normal weekly earnings is calculated pursuant to section 8 of the SRC Act which relevantly provides:
8 Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:
where:
NH is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and
OR is the employee’s average hourly overtime rate of pay during that period.
…..
(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.
The relevant period referred to in section 8 is defined in section 9 of the SRC Act. Section 9 of the SRC Act provides:
9 Relevant period
(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.
(2) Subject to subsection (3), if, during the period referred to in subsection (1), the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation was varied as a result of:
(a) the operation of a law of the Commonwealth or of a State or Territory; or
(b) the making, alteration or operation of an award, order, determination or industrial agreement, or the doing of any other act or thing, under such a law;
any part of that period that occurred before the variation, or last variation, took place shall be disregarded for the purposes of calculating the relevant period.
(3) Where in any case the application of subsection (2) would require that a period be disregarded for the purposes of calculating the relevant period in relation to an employee, and as a result of disregarding that period:
(a) it would be impracticable to calculate under section 8 the normal weekly earnings of the employee before an injury; or
(b) the normal weekly earnings as so calculated would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment by the Commonwealth or a licensed corporation before the injury;
subsection (2) shall not apply in that case, but the normal weekly earnings of the employee during that period shall be taken to be the amount that would have been his or her normal weekly earnings during that period if the variation had taken effect at the beginning of that period.
(4) If, during any part of the period calculated under the preceding subsections, the employee’s earnings were reduced, or the employee did not receive any earnings, because of absence from his or her employment for any reason, that part of that period shall be disregarded for the purposes of calculating the relevant period.
On 25 January 2023, the Respondent determined the Applicant’s NWE on the basis that the:[2]
(a)average number of hours worked in each week during the relevant period pursuant to section 8(1) of the SRC Act was 37:30; and
(b)average number of hours of overtime worked in each week during the relevant period pursuant to section 8(2) of the SRC Act was 11:03.
[2] T Documents, T5, pages 26-30, Determination.
The Respondent had calculated the Applicant’s average number of hours of overtime worked with reference to the 12 weeks prior to the date of injury.[3]
[3] T Documents, T11, pages 82-91, Emails between the Applicant and Services Australia – Overtime enquiry.
The Applicant sought review of the Respondent’s determination. The Applicant requested that the average number of hours of overtime worked for the purposes of calculating his NWE be calculated by considering the two week period before the date of his injury.[4]
[4] T Documents, T14, page 99, Email from the Applicant to the Respondent requesting reconsideration.
On 3 May 2023, the Respondent made a reconsideration decision varying the determination such that the Applicant’s NWE was to be calculated based on the average number of hours of overtime he had worked in each week during the relevant period, being the two week period prior to his date of injury. The Applicant’s average number of hours of overtime worked was varied to 13.67 hours.[5] The Respondent provided the following reasons for the decision:[6]
The initial decision maker accepted the 12 week period as the relevant period based on information provided by Services Australia.
Technical Team Leader of Payroll Services Mr [TH] in an email dated 14 April 2023 stated that the two week ‘relevant’ period does not generally provide a fair representation of your earnings given your varying hours of overtime worked each week, and as a result Services Australia adopted the average overtime calculations over the 12 weeks prior to your date of injury as their calculations.
In your reconsideration submission you contend that the 12 week period used to calculate your earnings is not a fair representation due to you being on a one week holiday and there being almost two weeks where no overtime was offered due to the Christmas and New Year period.
Having reviewed your submission along with the calculations provided by Services s Australia payroll for the periods 2, 6 and 12 weeks prior to your injury, I accept that the 12 week period would not be a fair representation of your Normal Weekly Earnings and Hours.
It is my assessment that your NWE should be determined utilising the 2 week period prior to your date of injury. These figures are as follows:
…….
I highlight that it is not mandatory for an employee to receive the most beneficial calculation possible. The aim is solely to provide a fair representation of what the ordinarily earnings were prior to the injury.
I note in cases where the comparison of an employee’s NWE amount between section 9(1) and section 8(5) has produced little difference, the Tribunal has held that the section 9(1) NWE does fairly represent the average weekly earnings, a decision maker should not depart from using the two-week relevant period. Given the 2 and 6 week period figures have not changed significantly, I accept your normal weekly earnings to be based off the 2 week period prior to your date of injury.
[5] T Documents, T24, pages 210-216, Reviewable Decision.
[6] T Documents, T24, pages 215-216, Reviewable Decision.
Having sought and received clarification on the NWE calculations the Applicant wrote to the Respondent seeking to have the relevant period used to calculate the average number of hours of overtime worked, set at 5 weeks prior to the date of injury.[7] The Applicant explained that the 6 week calculation provided in the reconsideration decision did not take into account that he had been on leave for one week and had nil overtime for that week.[8]
[7] T Documents, T25-T31 and T33, pages 217-224 and 233-236, Emails between the Applicant and Respondent.
[8] T Documents, T31, page 224, Email from the Applicant to the Respondent.
On 19 May 2023, the Applicant sought review of the reconsideration decision by way of an application to this Tribunal.[9]
[9] T Documents, T2, pages 4-20, Application for Review and attachments.
A Hearing was held on 22 May 2024. The Applicant, appeared by MS Teams audio, was self-represented and gave evidence under affirmation.
APPLICANT’S CONTENTIONS
The Applicant outlined his contentions in a submission dated 15 September 2023[10] with which his submissions at the Hearing were consistent. He contended that the relevant period for the purposes of calculating the average number of hours of overtime worked under section 8(2) of the SRC Act should be 5 weeks. The Applicant contended that:
[10] Tribunal Book, A1, pages 1-3, Applicant’s submissions.
·A 5 week period ending at the date of his injury on 22 February 2021 is a fair representation of his normal weekly hours and normal weekly earnings.
·A 5 week period should be used as he was on leave during the 6th week and was therefore unable to perform any of the overtime that was available that week.
·It would be unfair to include that week and it should not be included as it falls within the scope of section 9(4) of the SRC Act.
·The text of section 9(4) of the SRC Act states clearly that the week he was absent should be disregarded.
·Since he ceased performing his regular overtime there has been an unprecedented amount of overtime made available by Centrelink in comparison to what was available previously. He has not been able to take part in due to his injury.
·Up until his injury he was one of several employees who regularly did high amounts of overtime, which is confirmed on his payslips.
·The 5 week period is a fairer and more typical amount of overtime he had worked over many years, however if anything it was less that what he had averaged at the same time in the two proceeding years.
·He is not seeking to have his NWE calculation using his 2019 and 2020 overtime figures however provided them for context to show that he had regularly done high levels of overtime. If the two week period for each of those years were used they would result in average overtime hours worked of just over 25 hours.
·He is not seeking the most beneficial relevant period, he is seeking what is more accurate.
In response to questions asked by the Tribunal, the Applicant:
·Confirmed that he was only disputing the overtime hours used to calculate the NWE, he was not disputing the other components of the calculations.
·Said he had worked less overtime hours than normal in the two weeks before his date of injury as a Saturday overtime session was cancelled due to a potential weather event.
·Said his overtime hours during the 12 weeks before his date of injury was affected by the Christmas and New Year period where less overtime was available and because he had taken a weeks leave.
·Said he considers that the 5 week calculation of 17.86 hours most accurately reflects the overtime he had been doing in the lead up to the date of his injury.
In response to questions asked by the Respondent, the Applicant:
·Said he accepts that the twelve months of payslips relate to the period before his date of injury reflected the work and overtime, he had done and the amounts he was paid.
·Agreed that the pay periods and overtime periods do not match up.
·Confirmed that he was a full time employee.
·Agreed that he took recreational and flex leave between February 2020 and February 2021.
·Agreed with the proposition that some weeks during that 12 month period he worked and did overtime and others he did not.
·Agreed that during that 12 month period some fortnights the rates of overtime were higher because more overtime was available in some weeks than in others and that some weeks he was on leave and unavailable to undertake overtime.
The Applicant submitted that he seeks a decision that the relevant period in relation to calculating the average number of hours of overtime worked is 5 weeks. The crux of the Applicant’s contentions was that the relevant period should have regard to a 5 week period as effectively section 9(4) of the SRC Act should in fairness be applied to section 8(5) of the SRC Act.
RESPONDENT’S CONTENTIONS
The Respondent provided a Statement of Facts, Issues and Contentions[11] and a list of authorities prior to the Hearing. The Respondent’s contentions at the Hearing were consistent with these documents.
[11] Tribunal Book, R1, pages 9-16, Respondent’s Statement of Issues, Facts and Contentions.
The Respondent contended that the starting point in this matter is the calculations outlined in sections 8(1) and 8(2) of the SRC Act. The calculation derives the Applicant’s NWE which in the first instance relies on the relevant period being the 2 week period before the date of injury pursuant to section 9(1) of the SRC Act.[12]
[12] Tribunal Book, R1, pages 12-13, Respondent’s Statement of Issues, Facts and Contentions, paragraphs 4.1-4.4.
The Respondent, relying on the Federal Court Decision in Comcare v Nicolas (2014) 225 FCR 369 contended that section 9(4) of the SRC Act applies only to calculating the relevant period pursuant to sections 9(1), (2) and (3) of the SRC Act to exclude periods where a person did not work from the relevant period.
The Respondent contended that:[13]
Section 8 of the SRC Act requires NWE to be calculated using a fair representation of the Applicant’s average weekly working hours prior to the date of injury. In Zegura and Comcare [1998] AATA 604 SM Burton stated at [27]:
The mechanism to calculate the NWE must of course be construed as being fair to the worker. This does not mean that the figure which most favours the worker is the one to be regarded as "fairly" representing the worker's NWE. The terms of the provisions clearly do not support that construction.
The respondent contends that having regard to the payslips in the documents filed under s38AA of the Administrative Appeals Tribunal Act 1975 (the supplementary T-documents) a relevant period of 2 weeks as provided for in s9 of the SRC Act is not so short that it fails to fairly represent the applicant’s earnings and no variation pursuant to s8(5) should apply.
[13] Tribunal Book, R1, page 13, Respondent’s Statement of Issues, Facts and Contentions, paragraphs 4.6-4.7.
The Respondent submitted a table setting out the Applicant’s hours of overtime worked in the 3 months prior to the date of his injury.[14] Based on that information the Respondent provided:[15]
The respondent notes the following NH (being the average hours of overtime worked) during the 12, 6, 5 and 2 weeks prior to the date of injury on
22 February 2021 by reference to the payslips in the supplementary Tdocuments and noted above:[14] Tribunal Book, R1, pages 13-15, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.8.
[15] Tribunal Book, R1, page 15, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.9.
Relevant period
Dates
HN (total hours overtime/relevant period)
2 weeks
8 to 22 February 2021
13.98
5 weeks
18 January to 22 February 2021
17.86
6 weeks
11 January to 22 February 2021
14.88
12 weeks
30 November 2020 to
22 February 202110.84
The Respondent submitted that having had the payslips made available in relation to the 3 month period, the 2 week relevant period used in the application of section 8(2) of the SRC Act correctly calculates the Applicant’s average number of hours of overtime worked as 13.98 hours. The Respondent contended that, that calculation was a fair reflection of the weekly rates at which the Applicant was being paid prior to the date of injury on
22 February 2021.[16]
[16] Tribunal Book, R1, page 15, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.11.
Consequently, the Respondent submitted that it seeks a decision that the reviewable decision dated 3 May 2023 be set aside and that in substitution the Tribunal finds that the relevant period for the purposes of section 8 of the SRC Act is 2 weeks and that the Applicant’s NH for the purposes of section 8(2) of the SRC Act is 13.98 hours.[17]
[17] Tribunal Book, R1, page 15, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.12.
ISSUES
The issue before the Tribunal in this matter is whether sections 8 and 9 of the SRC Act have been correctly applied in calculating the Applicant’s NWE.
This issue was narrowed at the Hearing as the Applicant confirmed that he was only contesting the relevant period being used to calculate the average number of overtime hours worked in each week. The Tribunal understands that the Applicant otherwise accepts the average number of ordinary hours worked in each week during the relevant period and the average hourly ordinary time and overtime rate of pay.
At the Hearing the Applicant confirmed that he accepts the Respondent’s calculation of the average number of overtime hours worked in each week where the relevant period is 2, 5, 6 or 12 weeks before the date of injury as set out in paragraph 21 above.
Consequently, the issue for the Tribunal to determine is the relevant period for the purposes of section 8(2) of the SRC Act.
CONSIDERATION
The question for the Tribunal is whether the relevant period of 2 weeks prior to the date of injury fairly represents the weekly rate of overtime the Applicant was being paid prior to his injury. The Applicant contends that it does not and that the 5 week period prior to the date of his injury fairly represents the weekly rate of overtime he was being paid prior to his injury. The Respondent on the other hand contends that the 2 week period is a fair representation.
In Comcare v Nicolas [2014] FCAFC 122 (Nicholas) the Federal Court considered the interaction between sections 8 and 9 of the SRC Act with regards to the relevant period for the purposes of calculating NWE. The Federal Court stated:
19.……. some points should be made about s 8(5), in the context in which it appears.
20.Both s 8(4) and s 8(5) are directed to the possibility that a period of two weeks is too short to yield a fair outcome resulting from the calculation directed by s 8(1) (or s 8(2) which deals with overtime earnings). In the case of s 8(4) the difficulty is the impracticability of calculating normal weekly earnings before an injury, in which case earnings of a comparable employee are to be used. Section 8(5) concerns the possibility that a calculation made using the two-week period directed by s 9(1) would not “fairly represent” the normal weekly earnings of an injured employee. Examples given in argument were employees working on swinging shifts (i.e. some weeks on/some weeks off) and casual employees with uneven working hours.
21.In such a case (and the examples above do not limit the possibilities) it is open to the decision-maker to select another period for the purpose of the calculation. However, it must be emphasised that the period selected is to be used specifically for the purposes of the calculation in s 8(1) or s 8(2). That is to say, an average number of weekly hours worked during the period selected must be multiplied by the average ordinary time rate of pay during that period.
22.One question which may arise is that posed earlier. Is it open to select a different period altogether, or must the period selected be an extension of the two-week period directed by s 9(1), i.e. a period terminating at the date of injury. In any consideration of that question, the operation of the whole of s 9 must be taken into account.
23.In particular, the operation of s 9(1) must be considered in the light of the adjustments directed by s 9(2), (3) and (4). …..
…..
24.Section 9(2) has the effect, broadly speaking, that if a legally required increase is made to a rate of pay during the “relevant period” (i.e. the period beginning two weeks before injury), then the pre-increase part of the period is disregarded. Section 9(3) has the effect, again broadly speaking, that if such an adjustment (i.e. disregarding a pre-increase part of a period) would make it impracticable to calculate normal weekly earnings under s 8, or such calculated earnings would not fairly represent normal weekly earnings, then it is presumed that the variation took effect for the whole of the two-week period.
25.In the case of both s 9(2) and s 9(3) the consequence is, in one way or the other, that the injured employee has the benefit, when the calculation under s 8 is made, of the increase to the rate of pay represented by the variation.
26.Section 9(4) is directed to two different circumstances. It should be noted, first, that the possibilities to which s 9(4) is directed concern only “the period calculated under the preceding subsections”. That is to say, the period of two weeks directed by s 9(1) or the lesser period arising from the operation of s 9(2) (where it applies – c.f. s 9(3)).
27.Accordingly, s 9(4) allows periods of reduced earnings, or no earnings, during the two week (or lesser) period to be disregarded.
28.If, nevertheless, earnings calculated by reference to the remaining parts of the two-week period are fairly representative of the weekly rate at which the employee was being paid before the injury, the calculation proceeds in accordance with s 8(1) or s 8(2). If the period is too short, so that the normal weekly earnings calculated in that way would not fairly represent the weekly rate at which the employee was being paid, then s 8(5) remains available to permit the selection of some other period. It is important to emphasise, however, that the judgment to be made under s 9(4) is to be made before, not after, the engagement of s 8(5) because it must be made only in relation to the period directed by s 9, and not some alternative period selected under s 8(5).
29.What period may be selected under s 8(5)? It must obviously be one which meets the purpose of the calculation in which it will be used. That is to say, it must yield a fairly representative average of weekly working hours pre-injury and a fairly representative ordinary time rate of pay pre-injury so that a reliable calculation of normal weekly earnings pre-injury might be made for the purpose of s 19.
30.Subject to that overriding requirement (and to the proper engagement of s 8(5)) there does not appear to be any reason why the particular period chosen must terminate at the date of injury, although that would obviously be a possibility which the decision-maker might adopt.
[Emphasis added]
The Tribunal respectfully agrees with the Federal Court in relation to the operation of sections 8 and 9 of the SRC Act. As such, the Tribunal rejects the Applicant’s contention that section 9(4) of the SRC Act applies to require the week he was not at work to be excluded for the relevant period. As set out by the Federal Court in Nicholas, section 9(4) of the SRC Act relates only to the relevant period calculated in section 9 of the SRC Act.
As such the Tribunal finds that section 9(4) of the SRC Act does not apply to enliven the Tribunal’s discretion to nominate an alternate relevant period in accordance with section 8(5) of the SRC Act to calculate the Applicant’s NWE pursuant to section 8(2) of the SRC Act.
That does not, however, prevent a finding pursuant to section 8(5) of the SRC Act that the two week relevant period applied by section 9(1) of the SRC Act is too short to provide a fair representation of the weekly rate of overtime paid to the Applicant prior to his injury. The Federal Court in Nicholas provided that the task of the Tribunal is to examine whether the two-week period before the injury was fairly representative of normal weekly earnings pre-injury, not to assess whether those earnings might be expected to increase in the future.[18]
[18] Comcare v Nicholas (2014) 225 FCR 369 at [42].
The question of what fairly represents the average weekly number of hours of overtime being paid prior to the date of injury is one that is to be answered based on the facts of the particular case.
In Zegura and Comcare [1998] AATA 604 at [27], Senior Member Burton provided:
27. Argument was put to me on the proper construction of the words “fairly represent”. “Fair” to whom? I accept that the Act is remedial legislation and must be construed in favour of the worker (Bradford and Comcare Australia (1994) 37 ALD 187). However, the provisions of sections 8 and 9 effect a clear purpose – to ascertain the figure on which to base the weekly rate of payments to be paid pursuant to s19 of the Act. Senior Member Allen said in his oral reasons for the decision he gave, that the scheme of s8 catered for the casual or part-time worker, “who may be disadvantaged or may be unduly advantaged by a calculation under to subsection (1) of section 9.” The mechanism to calculate the NWE must of course be construed as being fair to the worker. This does not mean that the figure which most favours the worker is the one to be regarded as “fairly” representing the worker’s NWE. The terms of the provisions clearly do not support that construction.
[Emphasis added]
In considering the average number of hours of overtime worked calculated using a relevant period of 2, 5, 6 or 12 weeks as set out at paragraph 21 above, the Tribunal has examined all the material before it. The Tribunal is mindful of the fact that the Applicant agreed that throughout the year of his injury and in the years prior, he took leave and was unavailable to undertake overtime; and that there were also some periods where overtime was not offered and some periods where more overtime was offered than others.
As such, in considering the relevant period that most fairly represents the Applicant’s average hours of overtime worked prior to his injury, the Tribunal considers the divergence between the 2, 5, 6 and 12 week relevant periods does not raise any reason to consider that the 2 week period prior to his date of injury is not a fair sample of the actual overtime hours worked.
The Tribunal notes that the 12 week period allowed for a larger window of time to be considered and resulted in the least favourable number of average overtime hours worked being calculated. It is likely that a 26 week or 52 week period may produce a similar effect. The focus of section 9(1) of the SRC Act on the 2 week period directly prior to the date of injury looks to ensure a person’s circumstances at the time of the injury are considered to fairly calculate the applicable rate of incapacity payments. The role of the discretions provided by sections 9(4) and 8(5) of the SRC Act are to deal with circumstances out of the ordinary, for example and certainly not limited to, swing shift rosters or part-time working arrangements.[19]
[19] Comcare v Nicholas (2014) 225 FCR 369 and Zegura and Comcare [1998] AATA 604.
Given the fluctuation of available overtime and the Applicant’s availability to undertake offered overtime in the period leading up to the date of injury, it is important to remember that it is the relevant period that provides a fair representation of the Applicant’s NWE, rather than that which is most favourable to the Applicant, that should be applied.
As the operation of section 9(4) of the SRC Act relates only to section 9 considerations, it does not apply when considering section 8(5) of the SRC Act. Based on the evidence before it, the Tribunal does not consider that there is a compelling reason to find that the 2 week relevant period set by section 9(1) of the SRC Act in this case provides anything other than a fair representation of the Applicant’s average hour of overtime worked prior to the date of his injury.
As such, the Tribunal finds that the relevant period for the purposes of section 8(2) of the SRC Act is the two week period prior to the date of the Applicant’s injury as provided for by section 9(1) of the SRC Act. Meaning that in this instance, section 8(5) of the SRC Act has no work to do.
CONCLUSION
Based on the evidence before it and for the reasons set out above, the Tribunal finds that the relevant period for the purposes of calculating the Applicant’s normal weekly earnings pursuant to section 8 of the SRC Act is 2 weeks prior to 22 February 2021, being the date of his injury.
The Tribunal accepts the calculation of the Applicant’s average number of hours of overtime worked in each week by the Applicant during the relevant period of 13.98 hours.
Accordingly, the decision under review is set aside and in substitution the Tribunal decides that:
(a)the relevant period for the purposes of section 8 of the SRC Act is 2 weeks; and
(b)the average number of hours of overtime worked in each week by the Applicant in his employment during the relevant period (NH) for the purposes of section 8(2) of the SRC Act is 13.98 hours.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.......................[SGD]....................
Associate
Dated: 6 June 2024
Date of Hearing: 22 May 2024 Applicant:
Counsel for the Respondent:
Solicitor for the Respondent:
By MS Teams
Mr Ben Dube
Ms Suzy Dole
Sparke Helmore Lawyers
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