Keen v Telstra Corporation Limited - [2005] FCA 241

FEDERAL COURT OF AUSTRALIA
Keen v Telstra Corporation Limited [2005] FCA 241
ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal – assessment of compensation – payment of benefits – Telstra liable for injury to applicant in 1991 – Applicant made involuntarily redundant in 1997 – applicant received redundancy payment and lump sum of superannuation – In 2000 applicant sought compensation for injury – Telstra determined applicant’s entitlement to compensation payable – Telstra applied ss 21 and 33 of Safety Rehabilitation and Compensation Act 1988 (Cth) – applicant appealed to Administrative Appeals Tribunal – Tribunal determined s 21 and s 33 applied – "retires voluntarily, or is compulsorily retired" expression of wide operation and comprehends involuntary redundancy – Redundancy pay not attributable to weeks of employment – redundancy pay not comprehended by s 33
WORDS AND PHRASES –"retires voluntarily, or is compulsorily retired", "salary wages or pay"
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety Rehabilitation and Compensation Act 1988 (Cth) s 21, 33
Archer v Comcare (2000) 101 FCR 30 cited
Dadeeton v Commissioner of State Taxation [2004] SASC 88 cited
Department of Defence v Human Rights and Equal Opportunity Commission (1997) 78 FCR 208 cited
Giannoulis v Email Superannuation Pty Ltd (1990) 33 IR 479 cited
Gullett v Gardner (1948) 22 ALJ 151 cited
O'Shea v Comcare (1993) 18 AAR 430 cited
Peacock v Human Rights and Equal Opportunity Commission (2003) 73 ALD 341 cited
1984 Termination, Change and Redundancy Case (1984) 8 IR 34 cited
LA-RAINE LESLEY KEEN v TELSTRA CORPORATION LIMITED
NSD 1331 of 2004
MOORE J
15 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1331 OF 2004

BETWEEN:

LA-RAINE LESLEY KEEN
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

15 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The parties bring in short minutes of order giving effect to these reasons within 7 days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1331 OF 2004

BETWEEN:

LA-RAINE LESLEY KEEN
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
RESPONDENT

JUDGE:

MOORE J

DATE:

15 MARCH 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") concerning an assessment of compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Act") arising from a claim by the applicant, Ms La‑raine Keen, for the payment of benefits by the respondent, Telstra Corporation Limited ("Telstra"), under Part II Division 3 of the Act.
Background
The applicant was an employee of Telstra and its earlier manifestations between 6 April 1970 and 29 December 1997. The applicant sustained a neck and shoulder strain injury on 8 August 1991 while undergoing training. Telstra accepted liability for the injury on 2 October 1991. The injury was treated and the applicant resumed her usual duties. From time…

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.

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Details

Case: [2005] FCA 241
Decision Date: 15 MARCH 2005

CaseChat Overview and Summary

The applicant, Ms La-raine Keen, was a former employee of Telstra Corporation Limited. She was injured in August 1991, and Telstra accepted liability for the injury. The applicant experienced recurrent pain from the injury, and Telstra eventually terminated her employment on 29 December 1997. In 2000, Ms Keen sought compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) for the injury. The dispute centres on whether the applicant was entitled to weekly incapacity payments from the date of termination of employment, and if so, under which section of the Act. Telstra had initially denied the claim, but the Administrative Appeals Tribunal later set aside that decision and ordered a re-determination. Telstra then appealed the Tribunal's decision to this Court.

The central legal issues were whether the Tribunal had correctly applied the relevant sections of the Act in determining the applicant's entitlement to compensation, and whether the Tribunal had preserved an agreement between the parties that the question of which section of the Act was applicable would be left open. The applicant argued that s 19 of the Act applied, which provides for compensation payments in the event of an employee becoming incapacitated for work due to an injury, while Telstra contended that s 21 applied, which pertains to employees who are incapacitated and subsequently retire or are compulsorily retired from their employment and receive a lump sum benefit under the superannuation scheme.

The Court considered the applicable sections of the Act and the circumstances of the case. The Court found that the Tribunal had correctly applied the relevant sections of the Act, and that the Tribunal had indeed preserved the agreement between the parties that the question of which section was applicable would be left open. The Court dismissed Telstra's appeal, affirming the Tribunal's decision.

This Court orders that the parties bring in short minutes of order giving effect to these reasons within 7 days.

Orders

Orders of the court

1. The parties bring in short minutes of order giving effect to these reasons within 7 days.

Background

Background to the litigation

This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") concerning an assessment of compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Act") arising from a claim by the applicant, Ms La‑raine Keen, for the payment of benefits by the respondent, Telstra Corporation Limited ("Telstra"), under Part II Division 3 of the Act. Background The applicant was an employee of Telstra and its earlier manifestations between 6 April 1970 and 29 December 1997. The applicant sustained a neck and shoulder strain injury on 8 August 1991 while undergoing training. Telstra accepted liability for the injury on 2 October 1991. The injury was treated and the applicant resumed her usual duties. From time to time the applicant experienced recurrent pain from the injury. On 1 December 1997, Telstra wrote to the applicant saying it was unable to offer her continuing employment:Following due consideration of your redeployment and retraining options within Telstra, I regret to inform you that the company is unable to offer you continuing employment. As a consequence of this, your employment with Telstra will cease close of business on 29 December 1997.Telstra has appreciated your contribution to the company and as part of its commitment to the support of employees leaving the organisation, a range of career support services are available to you. If you wish to avail yourself of these services, you should contact your Line Manager.On separation you will be provided with a Statement of Service and an Employment Separation Certificate which will be required by the Department of Social Security should you seek Social Security benefits.Payment of your separation entitlements should be made within seven working days of your date of separation where practical. The exception to this will be your superannuation payments which will be organised by your superannuation scheme.If you have any further queries regarding your separation please do not hesitate to contact your Line Manager.The applicant received a redundancy payment in the sum of $104 828.55, calculated by reference to 80 weeks of her ordinary pay, and a superannuation lump sum of $252 557.60. In 2000, the applicant sought compensation under the Act for the neck and shoulder strain injury suffered in August 1991. On 6 March 2001, a delegate of Telstra determined the applicant was not entitled to weekly incapacity payments from 30 December 1997, the date of termination of employment, and a reconsiderations officer affirmed that decision. The applicant sought review of that decision by the Administrative Appeals Tribunal ("the Tribunal"). On 23 June 2003, the Tribunal set aside the decision of the delegate, ordering the matter be remitted to Telstra to determine the applicant's entitlement to compensation. An issue emerged about whether the Tribunal, in its decision, had preserved an agreement between the parties that the question of whether s 19 or s 21 of the Act was applicable would be left open. Telstra appealed. This Court dismissed the appeal after the Tribunal varied its decision under s 43AA of the AAT Act: see Telstra Corporation Ltd v Keen [2003] FCA 1440. The parties agreed in this matter that the effect of the Tribunal's findings were that the applicant was made involuntarily redundant on 29 December 1997.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MOORE J

On 15 January 2004, a delegate of Telstra determined the amount of compensation payable to the applicant and applied ss 21 and 33 of the Act. The applicant sought review of that decision by the Tribunal. On 16 August 2004, the Tribunal determined that ss 21 and 33 of the Act applied and remitted the matter to Telstra to calculate the benefits to be paid to the applicant. On 10 September 2004 the applicant commenced these proceedings in this Court seeking review, by way of appeal, of the Tribunal's decision.The decision of the Tribunal The parties agreed in the proceedings before the Tribunal that the applicant's normal weekly earnings for the purposes of s 8 of the Act were $1 311.03, the superannuation amount for the purposes of ss 4 and 21 was $183 397.75 and the superannuation contribution was $65.55 (the parties also agreed the superannuation scheme was a scheme for the purposes of s 4(1) of the Act). It was also accepted the applicant received her non-preserved superannuation entitlement within the meaning of s 21 and had not received her preserved superannuation entitlement. It was not in issue that the applicant was incapacitated before her employment with Telstra ended. Section 19 provides:(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21 21A or 22 applies.(2) Subject to this Part, Comcare is liable to pay the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula (…)Section 21 provides:(1) This section applies to an employee who, being incapacitated for work as a result of an injury retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a lump sum benefit under the superannuation scheme.(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated. (Emphasis added)Section 33 provides:(1) Where, in relation to a day in respect of which compensation is payable to an employee under section 19, 20, 21, 21A, 22 or 31, an amount or amounts are paid or payable to the employee by the Commonwealth or a licensed corporation by way of salary, wages or pay, the amount of compensation payable under that section in respect of that day shall be reduced by the amount, or the sum of the amounts, so paid or payable to the employee. (2) In this section, a reference to an amount paid or payable to an employee by the Commonwealth or a licensed corporation does not include a reference to: (a) an amount by way of pay in respect of a period of leave of absence granted, or in lieu of the grant of a period of leave of absence, under section 16 or 17 of the Long Service Leave (Commonwealth Employees) Act 1976, section 73 or 74 of the Public Service Act 1922 as in force before 20 December 1976 or section 7 or 8 of the Commonwealth Employees' Furlough Act 1943 as in force before that day; (b) an amount by way of pay in respect of a period of leave of absence granted, or in lieu of the grant of a period of leave of absence, under regulations in force under the Naval Defence Act 1910, the Defence Act 1903 or the Air Force Act 1923; (ba) an amount by way of pay in respect of a period of leave of absence, or in lieu of the grant of a period of leave of absence, in the nature of long service leave under a law of a State or Territory or an industrial award, determination, order or agreement; (c) any amount that the employee is able to earn in suitable employment or any amount of earnings payable to an employee, being an amount that has been taken into account for the purposes of calculating the amount of compensation payable to the employee under section 19; or (d) an amount of deferred pay within the meaning of Part III of the Defence Forces Retirement Benefits Act 1959 or of any provision of that Part. (Emphasis added)

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1331 OF 2004

BETWEEN:	LA-RAINE LESLEY KEEN APPLICANT
AND:	TELSTRA CORPORATION LIMITED RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	15 MARCH 2005
WHERE MADE:	SYDNEY

JUDGE:	MOORE J
DATE:	15 MARCH 2005
PLACE:	SYDNEY