Kelly and Comcare (Compensation)

Case [2025] ARTA 92

Kelly and Comcare (Compensation) [2025] ARTA 92 (13 February 2025)

Applicant/s:  Katrina Kelly

Respondent:  Comcare

Tribunal Number:                2024/0660

Tribunal:General Member M. Carey

Place:Melbourne

Date:13 February 2025

Decision:

1.    The reviewable decision made by Comcare dated 30 November 2023 is set aside.

2.    In substitution for the decision set aside the Tribunal decides:

a.    The normal weekly earnings calculated by the 'relevant period' referred to in subsection 9(1) of the SRC Act yields a result that does not fairly represent the weekly earnings the employee was being paid in respect of her employment before the injury.

b.    The other period for the calculation of normal weekly earnings pursuant to subsection 8(5) of the SRC Act is the period commencing 21 July 2022 and terminating on the day of injury on 23 May 2023.

c.     All the overtime worked by Ms Kelly in that other period from 21 July 2022 to 23 May 2023 was regular and required.

d.    There were no allowances paid to Ms Kelly in the other period from 21 July 2022 to 23 May 2023 relevant to the calculation of normal weekly earnings.

e.    The Tribunal remits the matter to the Respondent to calculate normal weekly earnings pursuant to subsection 8(1) plus the additional amount for regular overtime pursuant to subsection 8(2) of the SRC Act in accordance with the findings of fact made in this decision.

...............[SGD].................

General Member M. Carey

Catchwords

COMPENSATION – Weekly payments for incapacity for work – Normal Weekly Earnings – Relevant Period – Relevant Period under s 9(1) SRC Act does not fairly represent weekly rate paid before injury – Other period to fairly represent weekly rate, s 8(5) SRC Act – Overtime on a regular basis.

Legislation

Safety Rehabilitation and Compensation Act 1988 (SRC Act)

Cases

Bradford and Comcare [1994] AATA 285; (1994) 37 ALD 187
Comcare v Nicolas [2014] FCAFC 122; (2014) 225 FCR 369
Gray v Comcare [2004] FCA 1037; (2004) 139 FCR 41
Bortolazzo v Comcare [1997] FCA 515; (1997) 75 FCR 385
Telstra Corporation Ltd v Peisley [2006] FCAFC 79; 151 FCR 275
Barrington and Comcare [2015] AATA 29
McGuire v Union Steamship Co. of New Zealand (1920) 27 CLR 570
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Yates v South Kirkby Collieries [1910] 2 KB 538, 3 BWCC 418
Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR (NSW)
Rees v Military Rehabilitation and Compensation Commission [2005] AATA 690

Statement of Reasons

  1. Ms Katrina Kelly is entitled to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for an employment injury sustained on 23 May 2023. She has received weekly payments of compensation pursuant to section 19 of that…

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Details
AGLC
Kelly and Comcare (Compensation) [2025] ARTA 92
Case
[2025] ARTA 92
Decision Date

CaseChat Overview and Summary

In the matter of Kelly and Comcare, the applicant, Ms Katrina Kelly, sought compensation for a psychological injury sustained during her employment at the Services Australia office in Airport West, Victoria. The dispute centred on the calculation of her normal weekly earnings for the purpose of determining compensation under the SRC Act. Specifically, the applicant argued that the period used by Comcare to calculate her normal weekly earnings did not fairly represent her earnings due to her regular overtime work. The Administrative Appeals Tribunal was tasked with determining whether an alternative period should be used for calculating her normal weekly earnings.

The primary legal issue before the Tribunal was whether the period from 21 July 2022 to 23 May 2023, the day of the injury, would more fairly represent Ms Kelly's weekly earnings than the period stipulated by the SRC Act. This involved interpreting subsection 8(5) of the SRC Act, which allows for an alternative period if the specified period does not fairly represent the employee's earnings. Additionally, the Tribunal needed to determine whether the overtime worked by Ms Kelly in the alternative period was 'required' within the meaning of subsection 8(2) of the SRC Act.

The Tribunal found that the period from 21 July 2022 to 23 May 2023 more accurately reflected Ms Kelly's earnings due to her regular overtime work. This conclusion was based on the evidence that Ms Kelly consistently worked overtime during this period. The Tribunal noted that the requirement for overtime work, as defined in Telstra Corporation Ltd v Peisley, included situations where the employee was under an obligation to work additional hours, even if not legally enforceable. The Tribunal held that the acceptance of overtime work offered by the employer constituted an agreement that conformed with a requirement to work that overtime. Consequently, the Tribunal set aside the decision of Comcare and directed that the normal weekly earnings be recalculated using the alternative period, incorporating the overtime worked.

In light of the Tribunal's findings, the reviewable decision made by Comcare on 30 November 2023 was set aside. The Tribunal ruled that the period from 21 July 2022 to 23 May 2023 should be used for calculating Ms Kelly's normal weekly earnings, as it more fairly represented her earnings. The Tribunal also found that all overtime worked by Ms Kelly during this period was regular and required. It was further determined that there were no allowances paid to Ms Kelly relevant to the calculation of normal weekly earnings. The matter was remitted to Comcare to recalculate Ms Kelly's normal weekly earnings in accordance with the Tribunal's findings.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I have concluded that the reviewable decision must be set aside and a new decision made in substitution finding that the period that would fairly represent the weekly rate at which Ms Kelly was being paid in respect of her employment was that period from 21 July 2022 to 23 May 2023, the date of injury, and that in that period Ms Kelly was required to work overtime on a regular basis. Accordingly, the normal weekly hours and normal weekly earnings calculations must be made in accordance with both subsections 8(1) and 8(2) of the SRC Act.Background Ms Katrina Kelly suffered an injury related to her work as a front-of-house Service Officer at the Services Australia office located at Airport West in the State of Victoria. She made a claim for compensation to Comcare on 9 June 2023 stating that she was suffering from a psychological injury, which she first noticed at 1.20pm on 23 May 2023.[3] Ms Kelly attached a statement to her claim form detailing the circumstances of her traumatic injury. Shortly after her lunch on Tuesday, 23 May 2023, she was preparing for the afternoon's work. Earlier that day there had been an incident with a customer and the Service Centre had implemented a 'controlled entry' protocol for the safety of staff and other customers. She was away from her desk when she heard a duress alarm go off. Staff were rushing the other way down a corridor and shouting 'she's been stabbed'. She went to the scene and noticed that her Team Leader was motionless on the floor, bleeding heavily from stab wounds, and became overwhelmed by fear and confusion. She was aware of the customer who had made the assault and recognised him as someone who had assaulted another co-worker two years earlier. In her statement to Comcare she related how she remained at work outside the normal spread of hours that day, for which she was paid overtime rates, and was either assisting in the inquiries made by the Department or the Police, or trying to console and be consoled by her work mates, supported by the arrival of two social workers from Broadmeadows and a union delegate. It can be inferred from the statement of the circumstances that she did no further work after the incident that day, and further, she was incapacitated for such work. She completed her statement attached to the compensation claim:[4] It's now been 10 days since the incident and I have only now mustered up the courage to be able to type this, however I'm typing this report on a surface pro that my husband bought home from his office for the night, as I'm struggling to return back to the workplace. Since the incident I feel traumatised and broken, I'm struggling to attend to my children, my husband and my usual day to day living chores. I find it difficult to go anywhere and if I do I either have my husband with me or one of my children, I have this sense of fear on a daily basis, I keep relieving this traumatic incident.[3] T4, 29-34.[4] T4, 34. The claim form was accompanied by a medical certificate from Dr Hai Vy Ha dated 9 June 2023 diagnosing 'Post traumatic stress disorder and significant anxiety in the aftermath of witnessing a colleague being stabbed at work (Centrelink Airport West),' and describing her mental function as follows:[5] [5] T5, 35.Pt has been unable to function after witnessing the stabbingUnable to sleep or eatUnable to fulfil her activities of daily livingFeels disorientated and unable to concentrateMemory is impairedMentally exhaustedOngoing flashbacks of her colleague being stabbedPt is unable to attend to simple chores like looking after her teenage children or go grocery shopping by herselfPt had a car accident as a result of the stress.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further, while there was no evidence that the overtime work in the period under consideration was performed at the 'direction' of the Secretary, the analysis of whether overtime was 'required', as that word is used in relation to overtime in subsection 8(2) of the SRC Act, considers the nature and scope of the work required to be undertaken by the employee. In that context, the word 'required' includes situations where the employee is placed under obligation by the employer, even by a separate agreement to work overtime that may not be legally enforceable, but which constitutes an authority to work the additional hours.[50] The offer of overtime done with the approval of the Secretary or manager authorised by the Secretary followed by its acceptance by the employee constitutes such an agreement that conforms with a requirement to work that overtime.[50] Telstra Corporation Ltd v Peisley [2006] FCAFC 79; 151 FCR 275, [34]-36], Wilcox, Conti JJ; followed in Barrington and Comcare [2015] AATA 29; (2015) 146 ALD 444, 449-450 [31]-[33], Tamberlin DP.Decision The findings about the other period to be applied by reason of subsection 8(5) to the calculations to be made pursuant to subsections 8(1) and (2) of the SRC Act compel the following decision pursuant to section 105 of the Administrative Review Tribunal Act 2024:1. The reviewable decision made by Comcare dated 30 November 2023 is set aside.2. In substitution for the decision set aside the Tribunal decides:a. The normal weekly earnings calculated by the 'relevant period' referred to in subsection 9(1) of the SRC Act yields a result that does not fairly represent the weekly earnings the employee was being paid in respect of her employment before the injury.b. The other period for the calculation of normal weekly earnings pursuant to subsection 8(5) of the SRC Act is the period commencing 21 July 2022 and terminating on the day of injury on 23 May 2023.c. All the overtime worked by Ms Kelly in that other period from 21 July 2022 to 23 May 2023 was regular and required.d. There were no allowances paid to Ms Kelly in the other period from 21 July 2022 to 23 May 2023 relevant to the calculation of normal weekly earnings.e. The Tribunal remits the matter to the Respondent to calculate normal weekly earnings pursuant to subsection 8(1) plus the additional amount for regular overtime pursuant to subsection 8(2) of the SRC Act in accordance with the findings of fact made in this decision.

Ratio Decidendi

Legal Principle Established

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