LAURENCE WHITHAM and COMCARE - [2012] AATA 184

[2012] AATA 184

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2010/3943
Re	LAURENCE WHITHAM
APPLICANT
And	COMCARE
RESPONDENT

Decision

Tribunal	Ms G Ettinger, Senior Member Dr I S Alexander, Member
Date	29 March 2012
Place	Sydney

The Tribunal affirms the decision under review.

....................[sgd].........................

Ms G Ettinger, Senior Member

Catchwords

Compensation - Applicant injured his left knee in December 2005 and May 2006 - liability accepted and compensation paid - permanent impairment 20 percent - voluntary redundancy - disagreement regarding reasons for Applicant requesting voluntary redundancy, and ABC giving it - Tribunal decides that the Applicant was working fulltime in ‘suitable employment’ at the time of the redundancy - decision under review affirmed.

Legislation

Safety Rehabilitation and Compensation Act 1988, s 19(4)

Cases

Ganley v Comcare [2003] AATA 14

O'Shea v Comcare [1993] AATA 363
Shanahan v Australian Postal Corporation [1995] AATA 420
Woodbridge v Comcare [1994] FCA 1249
Woodbridge v Comcare [1995] FCA 1084

REASONS FOR DECISION

Ms G Ettinger, Senior Member
Dr I S Alexander, Member

29 March 2012

SUMMARY

Mr Laurence Whitham is a qualified and licensed electrician who worked as a lighting rigger in the lighting department at the Australian Broadcasting Corporation (ABC), initially from 1987. In early 1992, he was made redundant, then re-joined the ABC in December 1992, and worked there until the date his voluntary redundancy took effect on 21 December 2008.
Mr Whitham first injured his left leg on 20 December 2005. Liability was accepted, and compensation paid in respect to that injury, being fracture of tibia & fibula, closed (left) and strain of cruciate ligament of knee (left)’.. Mr Whitham underwent surgery.
Following his return to work in March 2006, Mr Whitham suffered a further injury to his left leg on 30 May 2006. Liability was accepted and, following further surgery, Mr Whitham was certified fit for suitable work duties from October 2006. Following a graduated return to work and a rehabilitation program, Mr Whitham recommenced full duties in 2007.
Mr Whitham has received a 20 per cent permanent impairment payout. It is undisputed that he suffers an impairment, and also that he was cleared for fulltime duties with restrictions by various doctors whose opinions are discussed below.
In late 2008, in response to rumours which indicated there were plans to merge the lighting and staging sections and their staff, and for other reasons about which there is disagreement between the parties, such as Mr Whitham wanting time and the redundancy payout to finish his house, and which are discussed below, Mr Whitham requested a voluntary redundancy. That was granted, and Mr Whitham’s employment with the ABC ceased on 21 December 2008.
The issues in this case have arisen because the Respondent, Comcare, says that Mr Whitham was offered suitable work duties, that he was working fulltime at those at the time of the voluntary redundancy, and that there was no question there would be a position for Mr Whitham in the newly merged department. Mr Whitham disagrees, and has…

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 LAURENCE WHITHAM and COMCARE

Details

AGLC: LAURENCE WHITHAM and COMCARE [2012] AATA 184
Case: [2012] AATA 184
Decision Date: 29 March 2012

CaseChat Overview and Summary

The case between Laurence Whitham and Comcare involves a dispute over the circumstances surrounding the applicant's voluntary redundancy following an injury sustained at work. The case was heard in the Administrative Appeals Tribunal (AAT). Whitham, who had suffered injuries to his left knee in December 2005 and May 2006, had his liability accepted and compensation paid by Comcare. The injury resulted in a 20 percent permanent impairment. Whitham subsequently requested voluntary redundancy, which was granted by his employer, the Australian Broadcasting Corporation (ABC).

The primary legal issue before the AAT was whether Whitham was genuinely working in suitable employment at the time of his voluntary redundancy. Comcare argued that Whitham had not been working full-time in suitable employment, thereby invalidating his claim for redundancy benefits. Whitham, on the other hand, maintained that he was employed in suitable work. The AAT was required to determine the factual circumstances surrounding Whitham's employment status and the reasons behind his request for voluntary redundancy.

In its decision, the AAT found that Whitham had indeed been working full-time in suitable employment at the time he requested voluntary redundancy. The Tribunal rejected Comcare's argument that Whitham had not been working full-time and was instead working part-time. The AAT concluded that Whitham's request for voluntary redundancy was not influenced by his employment status but was instead a result of other personal reasons. The Tribunal affirmed the original decision, upholding Whitham's entitlement to redundancy benefits.

Orders