LAURENCE WHITHAM and COMCARE
[2012] AATA 184
•29 March 2012
[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 |
| 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 appealed to this Tribunal. We noted there was disagreement regarding the date on which Mr Whitham requested the voluntary redundancy, the reasons for requesting it, why he took it, and whether he has a present entitlement to be paid compensation for incapacity pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
The Tribunal is satisfied that the correct or preferable decision is to affirm the reviewable decision dated 23 July 2010. Our reasons follow.
Issues before the Tribunal
There is no disagreement that liability was accepted for injurieswhich Mr Whitham sustained on 20 December 2005 and 30 May 2006.He also received an award for permanent impairment which recognises a 20 percent impairment.
The issue before the Tribunal is whether compensation is payable to Mr Whitham pursuant to section 19 of the Act. The Tribunal must consider in particular the application of sections 19(4)(c) and 19(4)(f) and 19(4)(g) of the Act.
There is agreement between the parties what the normal weekly earnings (NWE) would be if he is held to be eligible (Exhibit R3).
Legislative Context
The relevant legislation is the Safety Rehabilitation and Compensation Act 1988, in particular sections 19(4)(c) and (f).
19 Compensation for injuries resulting in incapacity
(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 to 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:
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
….
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
….
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.
Mr Thompson, counsel for Mr Whitham, and Mr Richards, counsel for the Respondent, Comcare, agreed that should the Applicant be successful, the NWE was as noted in Exhibit R3.
For the sake of completeness we note that Mr B Reid, now retired, who had been Mr Whitham’s senior manager for a period of approximately 18 months before he took his redundancy, and with whom Mr Whitham had arranged the redundancy, was called to give oral evidence at the hearing. His statement at Exhibit R4 had a number of attachments. We were mindful that Mr Thompson submittedon behalf of Mr Whitham that it would have been more relevant to hear evidence from the two supervisors who worked more closely with Mr Whitham.
We were satisfied with the fact Mr Reid gave evidence, and did not require to hear from other supervisors or managers.
Background
The parties agreed that paragraphs 1 – 19 of the Applicant’s statement (Exhibit A3) were non contentious. We have not reproduced those paragraphs here, but note they consist of a background to Mr Whitham’s arrival in Australia from Wales, where he was raised and completed his apprenticeship as an electrician. He arrived in Australia in 1981.
As noted above, Mr Whitham joined the ABC in 1987, was made redundant in early 1992, and was re-employed there in December 1992 where he remained until his voluntary redundancy took effect on 21 December 2008.
The proceedings before us include consideration of an injury Mr Whitham suffered to his left knee on 20 December 2005. Liability was accepted by the employer. Mr Whitham says he never recovered from the slipping incident in his employer’s car park on that day, and that he suffered a further injury to the left knee in May 2006. Mr Whitham underwent surgery on both occasions. He was paid compensation and had time off after both accidents, and after the May 2006 accident, he returned to work under rehabilitation in October 2006.
By October 2007, Mr Whitham was working fulltime at suitable duties. He said that his leg was not stable enough to climb ladders. He said that he was able to crouch with difficulty by lying down if he had to pick things up from the floor, and said that he was afraid of falling. He said that other staff such as casuals assisted him in his work.
In October 2008, Mr Whitham’s duties were changed, and he was doing bench work, repairing lighting equipment and doing a shift commencing at 5.00 pm. There was disagreement about how that change in duties occurred, which is discussed below.
We noted that Mr Whitham acquired a property of 103 acres on the south coast of New South Wales in 1997, on which he had built a house in 2001, and which he was finishing off during his time at the ABC. The undisputed evidence was that Mr Whitham took several periods of leave in connection with that work in his final year at the ABC.
In late 2008, Mr Whitham requested a redundancy which was granted after certain negotiations took place, including the ‘substitution’ of another employee. The redundancy took effect on 21 December 2008.
What work was Mr Whitham doing when he returned to work after the May 2006 accident?
When Mr Whitham returned to work in October 2006, he had a graduated return to work under a rehabilitation program which is the usual procedure following a compensable injury. He said that he was working a full week from October 2006. He returned to his former duties fulltime from October 2007 which continued until the redundancy took effect on 21 December 2008.
Mr Whitham said that but for the assistance of other staff, he was unable, because of his injuries, to continue doing the light work he recommenced doing in late 2006.
We were mindful that in October 2008, Mr Whitham’s duties were changed, and he was doing bench work repairing lighting equipment and doing a shift commencing at 5.00 pm. There was disagreement about how that change in duties came about which is discussed below.
Mr Reid’s evidence regarding that work regime was that because the ABC had received 1,000 new switches to go into a series of studio lights which had been taken out of service, and needed attention, Mr Whitham’s superiors agreed that he could have a break from his previous shifts, and carry out that work. Mr Reid told us that following that project, Mr Whitham would have been returned to his normal duties, to maintain and repair the lighting fittings and other electrical work, and work with the four to six member crews on the overnight shifts rigging lights. He emphasised however, that he was in a position to see that personnel and work were matched, and that difficulties staff experienced were given the requisite attention.
We were mindful that Mr Whitham’s evidence was marred by difficulties he had in recalling dates, and that the return to fulltime duties was in fact on 24 October 2007. There was further difficulty ascertaining what Mr Whitham could, and could not do (transcript page 24).
Mr Whitham stated in his handwritten statement at Exhibit A4:
Once the period of restricted duties and lifting restrictions had passed, I was considered fit enough to perform my pre-injury duties. I did so, but in reality, I still walked with a limp and found standing for long periods painful in the leg.
In reply to Mr Richards’ questions, Mr Whitham told the Tribunal that the above statement reflected how he presently is.
Mr Whitham also told us as follows:
On the last day at the ABC, I asked Barry Reid if my injuries and my inability to function fully in the studio was a deciding factor in giving me a redundancy. He said ‘no’.
The ladder work
Mr Whitham told us that because of his knee injuries he could not climb ladders, and rigging equipment close to the floor was also a problem. When we explored this further, it seems that Mr Whitham had exaggerated the need for ladder work, and that ladders were only used for rigging lights on the side of the studio. Although he first asserted that ladders were used once a week, he later agreed that there was rarely a requirement for ladder work in the lighting department. He told us that he was aware however, that in the staging department with which lighting was to be amalgamated, ladder work was more prevalent, and that he feared he would not be able to do it. That, he said, was the reason for requesting a voluntary redundancy. We have noted elsewhere that this was not the only, or even the predominant reason for the request which arose because Mr Whitham wanted the funds he would receive on redundancy in order to finish his house.
Mr Reid told us that following the bench work, Mr Whitham would have been returned to his normal duties, to maintain and repair the lighting fittings and other electrical work, and work with the four to six member crews on the overnight shifts rigging lights. He also told us that the lights came down on hydraulic lifts, that the staff had elevated work platforms, and that ladders were used very rarely.
Mr Reid also described the work in the staging department, and told us that ladders were rarely used there. He added: You would use a ladder when something is not working as it is supposed to work, to attend to something.
Regarding the amalgamation of the lighting and staging departments and the redundancy
Mr Whitham gave evidence that there had been rumours around the ABC for years prior to 2008 that the lighting and staging departments were to be merged in 2009, with loss of employment for certain people. He said that he had heard it from his immediate area boss, and had also heard that there were redundancies being offered.
Mr Whitham said that he wanted to take a voluntary redundancy because his knee continued to give him trouble, and that he was afraid he could not manage the work in the soon to be amalgamated lighting and staging departments. He said that he anticipated the work in the merged department would be heavy work, more physically challenging than it had been in the lighting department, and would involve climbing ladders, and other tasks which he could not perform because of the impairment to his left knee.
Mr Whitham said that his request was at first refused, that there then was discussion of substituting him with another possible redundancy, and that later things changed so that he was able to take a redundancy.
We noted that there was disagreement regarding the date of Mr Whitham’s request for voluntary redundancy to Mr Reid. Mr Reid said that it was 1 October 2008, whereas Mr Whitham insisted that his request was made in late November or early December 2008. Mr Whitham recalled the date, he said, because things moved very quickly, the transaction was completed, and he left the ABC on 21 December 2008, approximately three weeks following the request.
Mr Reid’s version of events is that he documented Mr Whitham’s request in an email to the relevant ABC staff on 3 October 2008 (Exhibit R4). We noted however, that there was also annexed to Mr Reid’s statement (Exhibit R4), an email dated 12 January 2009 from internal audit at the ABC addressed to Mr Reid which documented the meeting between Mr Whitham and Mr Reid regarding redundancy at late November 2008. In his oral evidence Mr Reid emphasised the date was 1 October 2008 by saying he recalled it was two weeks after he had announced to another employee who did not want to go, that he had been nominated for redundancy.
We have noted the above evidence and are mindful from Mr Whitham’s evidence that his recollection of various events was somewhat inconsistent. We have also noted that the cross-examination of Mr Reid on the issue of the dates of discussion of redundancy with Mr Whitham is inconclusive. Accordingly it is likely we would prefer the documented version of events. However, that has also proved unsatisfactory. We are not greatly concerned about the discrepancies in those dates, and ultimately the exact date of the request is immaterial for our purposes.
We have noted without reproducing the cross-examination of Mr Reid by Mr Thompson that Mr Thompson attempted to establish by reference to the documentation in Exhibit R4, that Mr Whitham’s redundancy may have been involuntary. Mr Thompson made submissions saying that an injured worker such as Mr Whitham was, would be a prime target for redundancy in the light of the amalgamation of the lighting and staging departments. We did not accept that submission, and have decided on the basis of the evidence before us, and agreement between the parties, that Mr Whitham approached Mr Reid, his then senior manager, to request a redundancy, and that the redundancy was a voluntary one.
Reasons for wanting a redundancy
We have noted that in the year before he left the ABC, Mr Whitham took a considerable amount of leave from work to finish his house.
We have also noted that the work Mr Whitham was doing fulltime in the three months before he left the ABC was bench work. Mr Whitham told us that there had been a shipment of spare parts for repairs to the lighting equipment, and in recognition of the difficulties with his knee, Mr Reid and another manager permitted him to work a 5.00 pm afternoon shift, and do bench work or maintenance work, where he could sit down. Mr Whitham said that when he discussed whether he could continue to do bench work in the new, merged department, Mr Reid indicated that would not be possible. We noted Mr Reid’s evidence which was that following the completion of the maintenance work Mr Whitham was carrying out in late 2008, he would have been returned to his normal duties to maintain and repair the lighting fittings and other electrical work. He also said that Mr Whitham would again be with the four to six member crews on the overnight shifts rigging lights. He explained that the lights came down on hydraulic lifts, the staff had elevated work platforms, and that ladders were used very rarely.
Mr Whitham told us that previous to his duties in late 2008, he had been doing heavy duty work, lifting and carrying lighting equipment, rigging the equipment and moving it between studios. Mr Whitham said that he had also always carried out repair work for the studio because he was a qualified and licensed electrician.
In cross-examination, Mr Richards put to Mr Whitham that the bench work was not in recognition of any difficulties Mr Whitham was experiencing, and not as a result of any meeting with the managers, but because the work needed doing by an electrician. He also asked Mr Whitham to confirm that Mr Reid and others in charge did not know Mr Whitham was experiencing any problems.
We are mindful that Mr Whitham’s answers to questions about his work were quite equivocal. The following are further examples of Mr Whitham’s unreliable evidence.
Mr Richards asked Mr Whitham:
Mr Richards: Do you agree or you don’t agree that you seem to be changing your evidence a lot today?
Mr Whitham: Well, I suppose it’s just my memory.. I am trying to remember as best I can but it’s obviously not good enough.
When Mr Whitham was asked in cross-examination what he had told Mr Reid in regard to his request for a redundancy, the Applicant stated:
I told Mr Reid that I was hoping to go down the south coast and finish my house and that was it.
…
in reflection of what was going to happen with the amalgamation of the departments in the ABC, which I didn’t want to be a part of and felt I couldn’t really go through with. So I thought that was the best option on that basis really.
Mr Whitham clarified for the Tribunal that the building of his house was completed, and that what remained was a matter of laying carpets and some wood work, a minimal part of which he could do, and some of which he would contract out. He agreed that he wanted the $75,000 redundancy payout, in part, to finish his house.
Mr Reid gave evidence regarding Mr Whitham’s reluctance to join in a new program. He said that Mr Whitham was concerned about the effect the amalgamation of the two sections would have on him, and described Mr Whitham as: not of a frame of mind where he wishes to embrace change. Mr Reid emphasised that Mr Whitham did not mention any concerns about his capabilities in regard to carrying out the reassigned work. Later in cross-examination, Mr Reid accepted that Mr Whitham expressed his perceived difficulties at having – managing his duties at the ABC. He added: I qualify that by saying the fact of the matter is that he was actually completing his duties at the ABC. Mr Reid also accepted that the difficulties Mr Whitham was experiencing doing the work assigned to him at the ABC was one of the reasons Mr Whitham requested a redundancy.
Mr Reid told us that in connection with the discussions regarding redundancy, he raised the fact that Mr Whitham was in the middle of his working career. He recalled Mr Whitham stating that he had had a bad run with his health, and that he mentioned having bought a property on the South Coast which he was in the middle of renovating. He also recalled Mr Whitham saying that: I’m a licensed electrician. I believe I will be able to get – rejoin the workforce.
Mr Reid also emphasised as follows:
... at no point through this process was there any suggestion that Mr Whitham’s position was in any way under threat of no longer being required by the ABC. And as a manager, I have the capacity to be quite flexible with the way in which I actually construct the jobs, the job plans, and match those to the skills of the individuals that I have. Mr Whitham’s position was secure with the ABC on an ongoing basis and I’m quite sure, had he chosen to say with the ABC, we would have been in a position where it was some additional training. We would have effectively generated a modified job plan and set of duties which was very gainful for the ABC and for Mr Whitham.
When asked: So it wasn’t some job that didn’t exist, it would have been a real job? Mr Reid replied: Absolutely.
Mr Richards also quoted from Mr Whitham’s statement as follows, and asked Mr Reid about the conversation:
Mr Whitham: On the last day at the ABC, I asked Barry Reid if my injuries and my inability to function fully in the studio was a deciding factor in giving me redundancy.
He said: ‘no’.
Mr Reid recalled the conversation reproduced above, agreed with it, and added:
I would have been more than happy to integrate Mr Whitham in the amalgamation. I was a little bit shocked because he had approached me about a redundancy. Mr Whitham was not even on the radar ... he had come out of left field and asked for redundancy for very specific reasons, as put to me, that he felt that a week – a week – a year – a year out of work to complete his renovations and then look at a new start in life was something that would be very positive for him.
...
Mr Thompson asked Mr Reid:
Mr Thompson: He didn’t say to you: ‘I am personally doing the work on the renovations?’
Mr Reid: Yes he did. Yes he did.
...
Mr Reid: He said ‘I’ve been working on my property on the New South Wales South Coast doing renovations and if had a 12 months period off work, I would be able to focus on and complete those renovations’.
...
Knowing that Laurence is a mechanically minded individual who works with his hands, I had no reason to assume that what he’s doing is acting as a property developer and calling in subcontractors.
We were satisfied from the evidence that Mr Whitham’s main reason for wanting a redundancy was to obtain the funds and the time to renovate his house on the South Coast.
Work Mr Whitham has been able to do and that he has done since leaving the ABC
Mr Whitham told the Tribunal that he has maintained his electrical contractor’s licence in order to have it available to do work at his house, and for the future. He told us that after leaving the ABC, he carried out some small electrical jobs for people, such as changing power points and light switches on four or five occasions. Mr Whitham told the Tribunal that he was paid for the work he did for friends (less than $500 in total).
Mr Whitham also said that he does some work in order to finish his house. He said that none of this work involved ladders or crouching work, and added that he finds steps difficult.
We are satisfied from the evidence that part of the reason at least that Mr Whitham has a contractor’s licence is to carry out electrical work at the property on which he has built a house, and which he is completing, and in order to do electrical work for other people. Mr Whitham told the Tribunal that when the house was built in 2001, the cabling was put in for him, and that since 2005, he has been doing work on it such as power points and switches. In replies in cross-examination, Mr Whitham explained that the electrical cabling was put in when the house was built, but conceded that he had done the electrical work for the kitchen. Mr Whitham agreed with Mr Richards that he was not totally incapacitated but added that the work I do is very limited and I have to be very careful about what I choose to do.
We noted that Mr Whitham told us he could presently sit at a computer and work for a couple of hours before having to get up and move around.
Medical Evidence
It is undisputed that Mr Whitham suffered a compensable injury to his left knee on 20 December 2005, and that he underwent surgery by Dr Maniam on 6 February 2006. He suffered a further injury to his left knee on 30 May 2006, and underwent further surgery. After the May 2006 accident, another orthopaedic surgeon, Dr Papadimitriou carried out surgery in June 2006. He was paid compensation and had time off after both accidents. Further surgery which Mr Whitham declined to undergo was suggested in 2009/2010.
Mr Whitham returned to work under rehabilitation in October 2006, and to full duties in October 2007. He was later awarded a lump sum payment for a 20 per cent permanent impairment.
Dr R Wallace, an orthopaedic surgeon, prepared a number of reports as a result of examining Mr Whitham. His reports of 13 April 2011 and 19 June 2011 were Exhibit A2.
In his report of 13 April 2011, Dr Wallace commented that Mr Whitham had done some computer work since he left the ABC, and also opined that he was:
unfit to return to his pre-injury duties of work as an Electrician/Rigger. He remains unfit for activities required repetitive bending, squatting, crouching, or kneeling at his left leg... He remains fit to return to work at full-time light duties with due consideration given to restriction on his activities...
Dr S Cheah, a general practitioner, who first saw Mr Whitham on 13 November 2009, wrote on 30 July 2010 that:
He is fit for employment that do (sic) not require repetitive bending, squatting, crouching and kneeling on left leg, standing in one position for prolonged periods, repetitive lifting above 7.5 kgs, working in confined spaces, at heights or ladders, prolonged driving or operation of machinery.
Laurence would probably have longstanding problems with his left knee as there is no further operative intervention that can be done to improve this. He is fit otherwise to do work as long as it does not put too much pressure on his left knee …
CONSIDERATION OF SECTION 19(4) OF THE Safety, rehabilitation and compensation ACT 1988
Sections 19(4)(c) and 19(4)(f) and 19(4)(g) of the Act
Section 19 of the Act deals with compensation for injuries resulting in incapacity, and instructs that Comcare is liable to pay to 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 a prescribed formula. Section 19(4) of the Act states that in determining, the amount per week that an employee is able to earn in suitable employment, Comcare, and therefore in this case, the Tribunal, shall have regard to:
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
….
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and…
(g)any other matter that Comcare considers relevant.
Was Mr Whitham offered suitable employment and did he fail to continue to engage in the suitable employment?
In considering the application of section 19, we note pursuant to section 19(4)(c) of the Act, that Mr Whitham, after becoming incapacitated for work as a result of two compensable injuries, received an offer of suitable employment, and accepted that offer. It is not in dispute that he returned to the ABC’s lighting department under rehabilitation in late 2006 (following the May 2006 injury), and then continued to work there fulltime as a light rigger from October 2007 until he took a redundancy effective on 21 December 2008. He was earning his regular wages.
We are mindful that the suitable employment in the lighting department took account of the fact Mr Whitham is a licensed electrician, so that his duties included work requiring a licensed electrician. His duties also took into account his level of impairment. We are also mindful that notwithstanding Mr Whitham’s evidence about finding the climbing of ladders a difficulty, we are satisfied that ladder climbing in the lighting department was rare. We note that in the last quarter of 2008 Mr Whitham was doing bench work fulltime, which entailed repairing lights.
Mr Thompson’s submissions on behalf of Mr Whitham, who was working doing bench work in the lighting department in late 2008, and anticipating an amalgamation of that department with the staging department in the following year, were:
(a)He was performing light duties;
(b)He had no assurance that he would be able to continue in those duties in light of the amalgamation he expected in 2009 (but which, we note, did not in fact take place until 2010);
(c)He anticipated the merged department would bring with it a large amount of manual labour, heavier than what he had been doing.
We also noted the evidence of Mr Reid regarding the amalgamation of the two departments as follows:
At the time Mr Whitham approached me to ask about whether he could be considered for a redundancy he was working full hours on normal duties as his duties could be accommodated with minor modifications.
...
... you have to remember that Laurence is a unique employee in the lighting riggers area because he had an electrician’s ticket and his duties involved maintenance and that was not a part of the duties of the other lighting riggers. So he already had a broader range of skills which gave both he and his management greater flexibility as to how we used -- we used him and deployed him.
When Mr Reid was asked whether the effect of Mr Whitham’s injuries played any part in the redundancy, Mr Reid replied:
No... I would have been more than happy to integrate Mr Whitham in the amalgamation. I felt it provided opportunities for everybody, including Mr Whitham.
....
I was a little bit shocked, because he had approached me about a redundancy. Mr Whitham was not even on the radar. I was processing seven redundancies that had all been worked through, and he had come out of left field and asked for a redundancy for very specific reasons, as put to me, that he felt a week – a week -- a year out of work to complete his renovations and then look at a new start in life was something that would he very positive for him.
We conclude from the evidence of both Mr Whitham and Mr Reid, that the Applicant was offered suitable employment following his injuries, and that at the time of requesting a redundancy, he was engaged fulltime in suitable employment in the lighting department at the ABC. We are satisfied from the evidence that the bench work he was carrying out in late 2008 may not have been available in the merged department, but are satisfied from Mr Reid’s evidence that he would have been offered suitable employment there, and are mindful that the restrictions mentioned by Dr Wallace would have been taken into account. We are not satisfied from the evidence that Mr Whitham would have been unable to carry out the duties required of him in full. In coming to that conclusion, we take into account Mr Reid’s evidence acknowledging that Mr Whitham had a broader range of skills than others without electrician’s qualifications and licences, which gave management greater flexibility as to how it deployed him.
Accordingly, being satisfied that Mr Whitham had been offered, and was working in suitable employment, we had to consider whether Mr Whitham, in requesting, and then accepting a voluntary redundancy which took effect on 21 December 2008, failed to continue to engage in that suitable employment.
Mr Whitham told us as follows:
On the last day at the ABC, I asked Barry Reid if my injuries and my inability to function fully in the studio was a deciding factor in giving me a redundancy.
He said ‘no’.
Mr Reid’s evidence was, as stated above:
I would have been more than happy to integrate Mr Whitham in the amalgamation. I was a little bit shocked because he had approached me about a redundancy.
Having taken into account all the evidence, the Tribunal is satisfied that Mr Whitham, in accepting a voluntary redundancy which took effect on 21 December 2008, failed to continue to engage in the suitable employment, offered to him, and in which he was engaging at the time of the redundancy, and for which he was earning the relevant salary. We must then decide then whether Mr Whitham’s conduct in requesting and accepting the redundancy, was reasonable in all the circumstances.
Was Mr Whitham’s action in requesting a redundancy and failing to continue in suitable employment reasonable in the all the circumstances?
We were referred to a number of cases in regard to consideration of section 19(4) of the Act as follows: Ganley v Comcare [2003] AATA 14, Shanahan v Australian Postal Corporation [1995] AATA 420, Woodbridge v Comcare [1994] FCA 1249 and Woodbridge v Comcare [1995] FCA 1084.
The question we must answer is whether Mr Whitham’s failure to continue in suitable employment by seeking, and accepting voluntary redundancy, was reasonable in all the circumstances, and whether there were any other matters that we considered relevant.
Whether the Applicant’s failure to continue to engage in suitable employment was reasonable in all the circumstances is a question that must be assessed objectively (Shanahan and Australian Postal Corporation at [51]). Guidance can also be found from other case law on this issue. In Re O’Shea and Comcare [1993] AATA 363, it was held that it was reasonable for the Applicant to accept involuntary retrenchment since employment opportunities within the Australian Public Service at the relevant time were very limited. However, this was not the case at the ABC in relation to Mr Whitham. We are satisfied from the evidence that Mr Reid had displayed a capacity and willingness to continue to provide the Applicant with suitable employment taking into account his impairment and his electrical qualifications.
We are satisfied from Mr Whitham and Mr Reid’s evidence that Mr Whitham was intent on finishing his house on the South Coast, and taking the payout of $75,000, and the time to do it. We have also noted that he was perhaps apprehensive about the amalgamation of the lighting and staging departments at the ABC. However, Mr Reid’s evidence about his plans for the merged lighting and staging departments, and his account of his questioning of Mr Whitham as to why he wanted a redundancy at such an early stage of his working life, reassured us that the reasons for requesting redundancy did not have the necessary nexus to Mr Whitham’s work-related injury.
Mr Whitham was offered suitable employment; and had been working within his capabilities at the ABC since returning under rehabilitation in October 2006, and then resuming full duties by October 2007. He was aware that the job at the bench may not have continued in the merged department, but according to Mr Reid he was one of the few licensed electricians, and a valuable asset at the ABC. We accepted that evidence.
We are accordingly satisfied from the evidence that the Applicant’s failure to continue to engage in suitable employment with the Respondent was unreasonable in the circumstances. Thus, pursuant to section 19(4)(f), this is a relevant factor to be taken into account in assessing the amount of the Applicant’s compensation entitlement under sections 19(4)(c) and 21 when assessing the amount of compensation payable to the Applicant.
The Respondent is entitled to take into account what Mr Whitham was receiving in the suitable employment provided for him until the redundancy took effect on 21 December 2008. In effect, at 21 December2008, the Respondent was entitled to treat the Applicant as though he was still earning his pre-retirement normal weekly earnings as he still had that capability. There is no evidence, medical or otherwise to alter our view about that.
The evidence regarding Mr Whitham’s post ABC employment situation is discussed above. In summary, he is capable, and has been engaging in certain work requiring an electrician and electrical contractor’s licence, and told us that he continues not to be able to do work involving ladders and crouching, (as at the ABC). He also told us that he could sit at a computer and work for a couple of hours before needing to get up and move around. Accordingly when the formula set out in section 21 of the Act is applied to Mr Whitham, it results in a nil entitlement to compensation.
We are satisfied there are no other relevant matters to take into account. In Woodbridge v Comcare [1994] FCA 1249, Hill J discussed that the decision-maker is to have regard to section 19(4)(g), even if it has been found that the failure to continue in suitable employment was not reasonable in all the circumstances, as in this case. It is possible in cases that circumstances could intervene that would be relevant in determining the ability of an employee to earn a weekly amount in suitable employment. His Honour said it is simply not correct to say that once an employee has come within one or other of paras (a) to (e) in a case where the discretion under para (f) required Comcare to find reasonableness, that an employee is forever disentitled to compensation. His Honour at [48] gives the example of a situation where an employee’s failure to continue with suitable employment is initially considered not reasonable in all the circumstances, but the applicant’s medical condition deteriorates to a point where he or she is not able to work at all. On the basis of the evidence provided to the Tribunal, Mr Whitham is still capable of carrying out suitable employment and from the evidence we have, we are satisfied that his medical condition has not deteriorated further than at the point of his taking the voluntary redundancy from the ABC.
Further, this was not a situation, as in Ganley v Comcare [2004] AATA 14, where the Applicant had taken a voluntary redundancy following redeployment into an unsuitable role. In that case, the Tribunal found that redeploying the applicant as a Transport Inspector was unsuitable taking into account his medical condition. As we have already stated, and as the evidence shows, Mr Whitham was capable of performing the duties he had. While Mr Whitham did hold a genuine concern that his roles might change following the merger between the two departments, it is clear from Mr Reid’s evidence, that there was no intention by the ABC to redeploy Mr Whitham to an unsuitable position. In so far as Mr Whitham’s belief that his role might change, there is no evidence to suggest this was likely, or that Mr Whitham’s apprehension was reasonable, and this is another factor that points to the redundancy being taken as not reasonable in all the circumstances.
CONCLUSIONS
We are satisfied from the evidence before us that the Respondent discharged its duties in providing compensation, then rehabilitation and suitable employment to the Applicant taking into account work related injuries. We find that Mr Whitham has, taking into account all the circumstances, unreasonably failed to continue in that suitable employment. We have considered whether there were any other matters that we considered relevant, and have addressed all relevant areas in relation to Mr Whitham.
Mr Whitham’s ability to earn in that suitable employment is a factor to be taken into account when determining his compensation entitlement. We are satisfied that he can earn what he earned in the suitable employment provided him at the ABC. For this reason, when applying the formula in section 21, the Applicant is not presently entitled to any amount by way of compensation.
DECISION
The Tribunal affirms the decision under review.
| I certify that the preceding 88 (fifty one) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr I S Alexander, Member |
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Associate
Dated
| Date(s) of hearing | 15 September 2011; 30 January 2012 |
| Counsel for the Applicant | Mr M Thompson |
| Solicitors for the Applicant | D Edwards, Denis Edwards & Assoc |
| Counsel for the Respondent | Mr D Richards |
| Solicitors for the Respondent | V Haddad, Dibbs Barker |
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