Jarrett and Comcare (Compensation) - [2024] AATA 1494

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jarrett and Comcare (Compensation)

Details

AGLC: Jarrett and Comcare (Compensation) [2024] AATA 1494
Case: [2024] AATA 1494
Decision Date: 6 June 2024

CaseChat Overview and Summary

This matter concerned an appeal before the Tribunal regarding the calculation of normal weekly earnings for an applicant who had suffered an accepted injury. The dispute centred on the appropriate period to be used for calculating the applicant's average weekly overtime earnings. The applicant contended that a longer period than the standard two weeks prior to the injury was necessary to fairly represent his overtime earnings, while the respondent argued for the standard two-week period.

The legal issue before the Tribunal was to determine the "relevant period" for the purposes of section 8(2) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) in calculating the applicant's normal weekly earnings, specifically concerning overtime. This involved considering whether the standard two-week period prescribed by section 9(1) of the SRC Act fairly represented the applicant's overtime earnings, or if an alternative period was warranted under section 8(5) of the SRC Act.

The Tribunal referred to the Federal Court's decision in *Comcare v Nicolas* [2014] FCAFC 122, which clarified the operation of sections 8 and 9 of the SRC Act. The Federal Court indicated that section 8(5) allows for the selection of an alternative period if the standard two-week period does not "fairly represent" normal weekly earnings, such as in cases of fluctuating hours or shift work. However, the Tribunal found that in this specific instance, the standard two-week period prior to the date of injury, as provided by section 9(1), was sufficient and fairly represented the applicant's overtime earnings. Consequently, section 8(5) was not engaged.

The Tribunal concluded that the relevant period for calculating the applicant's normal weekly earnings was two weeks prior to his injury on 22 February 2021. It accepted that the applicant had worked an average of 13.98 hours of overtime per week during this period. Accordingly, the decision under review was set aside, and the Tribunal substituted its own decision, confirming the two-week relevant period and the average of 13.98 hours of overtime per week.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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]