Knudsen and Australian Postal Corporation

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1038

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/255

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RUSSELL KNUDSEN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Dr KS Levy, Senior Member

Date1 December 2006

PlaceBrisbane

Decision The decision under review is affirmed.   

.........[Sgd]..........................

K S Levy
  Senior Member

Legislation

7.The following statutory provision of the Safety, Rehabilitation and Compensation Act (“the Act”) is relevant:

SAFETY, REHABILITATION AND COMPENSATION ACT 1988 - SECT 8

Normal weekly earnings

 ….

(10)  If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:

(a)  where the employee continues to be employed by the Commonwealth or a licensed corporation – the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or

(b)  where the employee has ceased to be employed by the Commonwealth or a licensed corporation – whichever is the greater of the following amounts:

(i)  the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;

(ii)  the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;

the amount so calculated shall be reduced by the amount of the excess.

Evidence

8.The following documentary evidence was admitted:

· Exhibit 1 – the Tribunal documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975;

·     Exhibit 2 – Respondent’s Statement of Facts and Contentions dated 26 July 2006;

·     Exhibit 3 – Applicant’s Reply to the Statement of Facts and Contentions dated 24 August 2006;

·     Exhibit 4 – Respondent’s reply to the Applicant’s Statement of Facts and Contentions dated 11 September 2006.

9.      The application for review is dated 17 April 2006. In that application, the applicant proposed an argument based on, inter alia, the following:

·the fact that the depot at Northgate was closed on Boxing Day is not relevant;

·the refusal of payment of the allowance is based on the fact that the HR manager "cannot comment" on the applicant’s likelihood of being rostered for duty or swapping with another transport officer for a duty which would have incurred paid allowances;

·he would have been entitled to the allowance "but for injury";

·he is supported by managers and supervisors at the Northgate depot of the Australian Postal Corporation. He claims "overwhelming support";

·that it is "probable" rather than "possible" that he would have been rostered for or swapped to a duty, and "but for injury", he would have been paid an…