Knudsen and Australian Postal Corporation

[2006] AATA 1038

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

CATCHWORDS

WORKERS COMPENSATION – workplace injuries, hernias – applicant seeking compensation for boxing day – workplace closed on boxing day – applicant would receive overcompensation of allowance received - decision affirmed

Safety Rehabilitation and Compensation Act 1988 s 8(10)

REASONS FOR DECISION

1 December 2006   Dr KS Levy, Senior Member

Introduction  

1.      The applicant, Russell Knudsen, has been an employee of the Australian Postal Corporation since 27 October 1980. He is currently employed as a Postal Transport Officer.

2.      In the course of his employment, he has had a number of workplace injuries, mainly hernias. He sought an allowance for one day's pay for Boxing Day 2005, which he contends, despite the depot being closed, that he was entitled to compensation for loss of pay or allowance for that one day.

3.      The applicant argued that he was entitled to one day's compensation for Boxing Day public holiday because "but for injury, normally would have been rostered for a duty or swapped to a duty that was paid allowances." He argued that it was authorised by the Human Resources manual and that it had been approved in the past.

4.      His claim was rejected on 4 January 2006. He sought a review of the decision on 8 January 2006 and the reviewer affirmed the original decision on 21 February 2006.

5. It is that decision that the applicant now seeks to have reviewed by this Tribunal under section 37 (1) of the Administrative Appeals Tribunal Act 1975.

Issues

6.The question for the Tribunal is whether the applicant has a legal entitlement to compensation in lieu of payment of penalty allowance for 26 December 2005?

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 allowance for the one-day for which he claims.

10.     There is clearly a history of multiple injuries and claims by the applicant. There is also a clear pattern of some concern by a number of officers within the respondent organisation about the claims made by the applicant.

11.     The respondent in its statement of facts and contentions describes the following history:

·The applicant is 55 years old and has worked for the Australian Postal Corporation for 25 years (approximately);

·In 1995, the applicant claimed for a left groin strain. This was acknowledged in 1998 and compensation paid by the respondent as 10% permanent impairment. He remains on restricted duties from that time until he was certified fit for full duties in February 2002;

·The applicant was referred for medical examination with Dr O’Rourke in 2005. Despite some issues between the applicant and his union with the respondent organisation, he was medically examined and Dr O’Rourke reported on 25 July 2005. The medical report indicated the applicant could anticipate a 90% full recovery with surgery;

·Laparoscopic surgery was conducted on 27 September 2005 by Dr Phillips;

·Dr Phillips certified the applicant as fit for full duties as from 12 October 2005;

·A Rehabilitation Consultant requested a further report from Dr Leggett. Dr Leggett advised the applicant was fit for work with restrictions on the amount of weight to be lifted, and that he should do no pushing or pulling. The applicant was also certified as fit to work overtime;

·The applicant lodged an incident report on or about 27 January 2006;

·On 31 January 2006, Dr Vorback certified the applicant as fit for restricted duties;

·The applicant has applied on numerous occasions for an allowance, identical to the one which he claims for Boxing Day 2005. His record of attendance sheet had been annotated on each occasion with the following "but for injury, normally would have been rostered for a duty or swapped for a duty that was paid allowances";

·the claims using this notation were made for the following dates: 25 December 2001, 26 December 2001, 28 January 2002, 29 March 2002, 1 April 2002, 10 June 2002, 27 January 2003, 18 April 2003, 21 April 2003, 25 December 2003, 26 December 2003, 26 January 2004, 9 April 2004, 12 April 2004, 26 April 2004, 3 May 2004, 14 June 2004, 22 December 2004, 28 December 2004, 31 December 2004, 26 January 2005, 25 March 2005, 28 March 2005, 25 April 2005, 2 May 2005, 26 December 2005, 27 December 2005, 30 December 2005, 2 January 2006, 26 January 2006.

12.     The applicant responded to these facts and contentions under cover of a letter of 24 August 2006. Essentially, his response emphasised that the decision to pay the allowance should be based on how the rostering system worked at Northgate depot and, using the fact that the allowance had been paid in the past to himself and other drivers, was evidence of its justification.

13.     In reply, the respondent in submissions dated 11 September 2006 argued that:

·the claim is based on "past indulgences" and that "an inappropriate practice developed whereby the applicant was incorrectly and are unfairly paid penalties";

·the applicant has provided no evidence "of any co-worker prepared to give evidence of a willingness to forego normal work entitlements by swapping duty on 26 December 2005 with the applicant";

·simply annotating his time attendance sheets does not give rise to a statutory entitlement to payment of penalties for duties he was not rostered to perform and did not perform;

·he had previously benefited from a "local policy" which was no longer in existence, and this is irrelevant to the proper application of the statutory and other legal provisions;

·penalties have been paid in the past, not because a statutory entitlement, but to avoid the respondent incurring costs of defending such claims at the Tribunal.

Findings of fact

14.     The Tribunal makes the following findings of fact:

a.The applicant is a long time employee of the respondent.

b.He had received a number of "hernia" type injuries.

c.He had been paid allowances for previous public holidays in similar circumstances.

d.The applicant pursued his claims in detail, at length and in a robust manner.

e.Staff of the depot had made previous decisions in relation to these allowances, at least in part, in response to the self advocacy of the applicant.

f.The applicant's robust approach to his employer has resulted in an air of caution towards him.

g.The depot closed on Boxing Day 2005, the date for which the applicant claims compensation.

h.He could not have worked on that day (whether by roster allocation or by swapping of shifts).

i.He did not in fact, work on the day in question.

j.There is no evidence of independent support for the applicant's contentions by any work colleague, as he suggests.

Consideration

15.     The Tribunal has taken into account all of the evidence and all of the relevant statutory and case law in reaching a determination in this matter.

16.     The respondent alleges the applicant was paid similar allowances in the past to avoid legal and other costs. This is corroborated by a number of HR or managerial staff at the depot, who confirm that the workplace was captured by an air of anxiety, as the applicant would pursue staff and the issues he raised until he was successful. This is evidenced by the following e-mail sent from one officer to his superiors, copies of which were sent to four other officers:

What do you suggest we do with Russell's case? I have been here before and we have attended the AAT at great expense to the Organisation. Russell is the type of person who goes on and on until he gets what he wants. There is no way that Russell could have worked on this day. (See T7, Folio 13)

17.     The applicant claims that he has overwhelming support for his claims from his managers and supervisors. He states that "[i]t is therefore probable as opposed to possible that I would have been rostered for or swapped to a duty, but for injury that was paid this allowance".

18.     The Tribunal finds that the applicant’s claim in this regard is not supported. Indeed, the logical extension of his claim that he would have been rostered or swapped with another driver, if it is relevant at all, is also not accepted by the Tribunal (PT 1, Folio 7). There is no statement by any person in support of the applicant's claims and the documentary evidence he provides is five years old. Indeed, the applicant's submissions confirm an impression created by the evidence of various officers who work in an administrative capacity, that the applicant is obsessive in taking every point with his employer. This relates not only to the fact that this claim amounts to one day’s allowance, but the extent of lengthy and acrimonious correspondence is indicative of provocative and deleterious workplace relations.

19.     Much of the applicant’s evidence is emotive, such as the statement that "…Mr Pears did not rise to such a senior position by incorrectly squandering the Corporation's money" (Exhibit 3, Folio 3).

20.     The issue in this case requires the Tribunal to determine, not what the preference of Northgate drivers is, but what the law is in relation to the payment of allowances. Notwithstanding that, it has been difficult to find a scintilla of evidence which has been produced to justify the assertions made by the applicant as to the likelihood of his being able to work on Boxing Day 2005 (even if there was an entitlement in those circumstances).

21. In relation to the statutory provisions contained in section 8(10) of the Act above, it is important to adopt a construction of that provision which would promote the purpose of the Act (s15AA Acts Interpretation Act 1901). The modern approach to statutory interpretation is to adopt a meaning which fits within the context of the words of the statute and which is consistent with the language and purpose of the relevant Act (CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).

22. In relation to the provision in question, Heerey J of the Federal Court said that this is socially oriented legislation and should be construed in favour of an injured employee where there is ambiguity. However, if there is no ambiguity, that principle cannot be applied. His Honour also said of the purpose of the Act:

The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of work-related injury. However, it follows conversely that the injured employee should not be better off. (Bortolazzo v Comcare (1997) 75 FCR 385 at 388).

23. Section 8(10) is related to the calculation of normal weekly earnings under section 8(1) and 8(2). Specifically, it is concerned with the risk of overcompensation to an injured employee comparing pre-injury entitlements and post-injury work conditions, and taking into account changes in conditions of employment. In Bortolazzo, employees had worked shifts and were subsequently injured. They had been paid penalty rates which increased their remuneration substantially over their base salaries prior to the injuries. However, the Army base on which they worked was subsequently privatised and they were no longer entitled to the penalties formerly paid. Heerey J concluded that the employees in that case could not be in a better position when they were not working than would have applied had they continued to work under the post privatisation scheme.

24.     It is important to note that there is a clear thread running through the communications between the applicant and the respondent that the applicant’s demands and his approach in seeking his demands has resulted in the respondent historically, at times, capitulating and paying an allowance to the applicant (and others). This was done with the intention of minimising their costs, both administrative and legal, in answering the applicant's claims. The fact that this claim is for one day’s compensation makes the respondent’s actions reasonable and understandable. Despite the fact that the applicant has not produced any contemporary evidence by any work colleague, the Tribunal finds that such evidence would not have been of assistance in determining what is clearly a statutory basis for payment of compensation, and which has been elucidated by Heerey J in Bortolazzo. As the applicant would have the benefit of overcompensation if an allowance were to be paid, the law as laid down by the Federal court has clear application in this case. The Tribunal finds that the applicant is not entitled to the allowance he seeks.

Decision

25.     In the circumstances, the Tribunal finds that the decision under review must be affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member.

Signed:  ………………………………………

Administrative Assistant

Date/s of Hearing  Hearing on the papers
Date of Decision  1 December 2006