Lieschke and Telstra Corporation Ltd (Compensation)
[2021] AATA 4462
•1 December 2021
Lieschke and Telstra Corporation Ltd (Compensation) [2021] AATA 4462 (1 December 2021)
Division:GENERAL DIVISION
File Number(s): 2017/0096
Re:Christopher Lieschke
APPLICANT
AndTelstra Corporation Ltd
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:1 December 2021
Place:Adelaide
The decision of the Tribunal is to set aside the decision dated 7 October 2016 and substitute as follows:
(a) The applicant’s normal weekly earnings amount, as at 15 October 2009, for the purposes of s 19(2) of the Safety, Rehabilitation and Compensation Act 1988, was $1,239.11;
(b) As adjusted from time to time as per the table in the attached reasons, the applicant’s normal weekly earnings for the purposes of s 19(3) of the Safety, Rehabilitation and Compensation Act 1988 as at 23 December 2015 was $1,407.87.
..[SGD]........................................................
Deputy President Britten-Jones
Catchwords
COMPENSATION – normal weekly earnings – direction to remit determination of subsequent normal weekly earnings amounts – reviewable decision went beyond the direction to remit and included a calculation of a purported overpayment – application for review limited to the determination of normal weekly earnings – reviewable decision set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Lieschke and Telstra Corportation Limited (Compensation) [2016] AATA 351
Commonwealth v Goodfellow [1980] FCA 54; (1980) 31 ALR 533
REASONS FOR DECISION
Deputy President Britten-Jones
This matter arises from a decision of Deputy President Bean made on 30 May 2016 involving the same parties as this matter.[1] In that decision, DP Bean set aside an earlier decision dated 16 July 2013 and determined that Mr Lieschke’s normal weekly earnings (NWE) amount, pursuant to s 8 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), as at 15 October 2009, was $1,239.11. This figure was calculated using the formula contained in s 8 of the SRC Act which provides as follows:
[1] Lieschke v Telstra Corporation Ltd [2016] AATA 351
Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
Having determined the NWE amount as at 15 October 2009 (being the date of his injury), DP Bean made a direction remitting to the respondent:
the determination of Mr Lieschke’s subsequent NWE amounts, by reference to the Tribunal’s Reasons for Decision and on the basis that during the relevant period, Mr Lieschke was paid 100.71% of his ‘at risk’ remuneration amount.
The respondent made a decision on the remittal on 15 August 2016 which was affirmed on reconsideration on 7 October 2016. This later decision is the reviewable decision for the purposes of this application for review. Despite the terms of the remittal being clearly limited to a determination of Mr Lieschke’s subsequent NWE amounts under s 8 of the SRC Act, the respondent’s determination included the amount of compensation payable to Mr Lieschke under s 19 of the SRC Act and a calculation as to an alleged overpayment with respect to that compensation. The respondent’s determination in so far as it determined compensation under s 19 of the SRC Act and calculated an alleged overpayment went beyond the terms of the remittal direction made on 30 May 2016.
On this application for review I stand in the shoes of the original decision-maker and make a fresh de novo decision. My decision is limited to the matter that was remitted by DP Bean, namely a determination of Mr Lieschke’s subsequent NWE amounts under s 8 of the SRC Act. The liability for compensation under s 19 and whether there has been an overpayment of that compensation are not issues that arise in this application for review. I consider that these issues were not properly before the respondent and I therefore disregard any findings on these issues by the respondent. Therefore, I consider the correct or preferable decision is to set aside the reviewable decision and to make a decision in substitution.
It is unfortunate that the parties spent so much time and effort dealing with s 19 of the SRC Act and the question of overpayment. Complex issues of fact and law were involved and the parties exchanged numerous extremely detailed excel spreadsheets which included figures arising from each of the fortnightly pay periods from 15 October 2009 to 22 December 2015. This is not a criticism of Mr Lieschke who understandably saw these proceedings as a chance for him to defend an allegation of overpayment made by the respondent. It is not clear to me why the respondent went beyond its task on the remittal, nor why this flawed approach was perpetuated on the application for review.
The respondent now accepts that:
the dispute as to whether an overpayment has been made by it to the Applicant, and the amount of any purported overpayment and its recovery is not within the jurisdiction of the Tribunal: it is essentially a matter that is recoverable in a court of competent jurisdiction as a debt (relevantly s 114(1)(b)(c … of the SRC Act.[2]
[2] Respondent’s Further Amended Statement of Facts, Issues and Contentions dated 15 February 2021
I agree that the question of whether a debt is due and issues as to its quantum are matters to be determined by a Court and not this Tribunal.[3]
[3] See Commonwealth v Goodfellow [1980] FCA 54; (1980) 31 ALR 533 at 542
The issue for me to determine is Mr Lieschke’s NWE amounts for the period subsequent to 15 October 2009 and ending on 23 December 2015. The starting point is the determination by DP Bean that Mr Lieschke’s NWE, as at 15 October 2009, was $1,239.11. There is scope for that figure to be increased or reduced in any subsequent period in certain circumstances set out in the sub-sections of s 8 of the SRC Act.
The applicable sub-sections of s 8 are:
(9) The normal weekly earnings of an employee before the date of the employee’s injury, as calculated under the preceding subsections, must, while the employee continues to be employed by the Commonwealth or a licensed corporation, be increased or reduced by the relevant percentage.
(9A) For the purposes of subsection (9), relevant percentage means the same percentage as the percentage of increase or reduction in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury as a result of:
(a) the operation of a law of the Commonwealth or of a State or Territory; or
(b) the making, alteration or operation of an award, order, determination or industrial agreement or the doing of any other act or thing, under such a law.
(9B) The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date.
(9C) For the purpose of subsection (9B), the indexation date, in relation to a cessation of employment, is:
(a) the 1 July next following:
(i) the date on which this Act receives the Royal Assent; or
(ii) the date of that cessation of employment;
whichever last occurs; and
(b) each subsequent 1 July.
The parties both accept that the period the subject of this application for review is 15 October 2009 to 23 December 2015. Mr Lieschke has made a separate claim for a period from 23 December 2015 which is the subject of another application number 2019/3287.
For the purposes of s 8(9) of the SRC Act, Mr Lieschke continued to be employed after his injury on 15 October 2009 up until February 2015.
Mr Lieschke claims a percentage increase under s 8(9A) of the SRC Act based upon an increase paid to a class of employees of which he says he was a member. The increase was paid under an enterprise agreement which Mr Lieschke asserts covers him. Mr Lieschke specifically claims increases dated 1 October 2011, 1 October 2012, 1 October 2013 and 1 October 2014. He said he attended a vote for the enterprise agreement in 2011 and that he received increases based upon the enterprise agreement. He said that he was told he was covered by it and was given documents that said he was covered by it. The respondent says that the enterprise agreement does not apply to him and that he is covered by an Australian Workplace Agreement from 2006.
There is no signed enterprise agreement to verify Mr Lieschke’s assertion. I have no reason to doubt that Mr Lieschke attended a meeting and voted in favour of the agreement, but he would not be covered by it unless and until he signed the agreement. Mr Lieschke provided no documentation to support any of his assertions. There is written evidence of an Australian Workplace Agreement signed by Mr Lieschke on 18 September 2006 with a starting date of 3 October 2006. I am satisfied on the evidence that this Australian Workplace Agreement continued to apply to Mr Lieschke during the relevant term of his employment. In the absence of any evidence that he signed the enterprise agreement or any other documentary evidence to support his assertions, I reject Mr Lieschke’s claim to an increased NWE amount based on the enterprise agreement.
Mr Lieschke claims an increase of 10.3% of his annual base salary from 22 July 2010 and relies upon a finding made by a litigation officer of the respondent in the reconsideration dated 16 July 2013.[4] I reject this increase because it is not supported by the respondent’s table of fixed remuneration (less superannuation)[5] which shows no increase in remuneration until March 2011. Further, the reconsideration dated 16 July 2016 was set aside by DP Bean on 30 May 2016 (as set out above) and hence Mr Lieschke cannot rely upon it.
[4] Exhibit 1 T4 page 19
[5] Exhibit 1 T10 page 75
Mr Lieschke claims an increase from 3 March 2011 based upon a salary increase. The respondent accepts this therefore the NWE increases from $1,239.11 to $1,268.85.
Mr Lieschke claims an estimated 20% increase from 1 December 2011 based on new shift work obligations for team leaders. He says that the rate is to be confirmed from comparator wage details, but the respondent says that group certificates of relevant individuals have been provided. In any event, there is currently no evidence on which the Tribunal could be satisfied that supports this claim.
Mr Lieschke claims an increase from 1 July 2015 on the basis that he ceased his employment in February 2015 and he was entitled to an indexed increase of 2.6%. I reject this increase because an indexation only occurs when an injured employee goes without an increase in a 12 month period and in this case Mr Lieschke received a salary increase in October 2014 and hence was not entitled to an indexed increase until 1July 2016.
There are other salary increases which result in the NWE increasing up to $1,407.87 as at the end of the relevant period, namely 23 December 2015. The salary increases are set out in the respondent’s table of fixed remuneration (less superannuation).[6] The table below provides the details of the NWE amounts that apply from the stated dates:
[6] Exhibit 1 T10 page 75
15/10/2009 – 2/3/2011
$1,239.11
3/3/2011 – 30/9/2011
$1,268.85
1/10/2011 – 30/9/2012
$1,313.26
1/10/2012 – 30/6/2013
$1,339.53
1/7/2013 – 30/9/2013
$1,339.80
1/10/2013 – 30/6/2014
$1,379.99
1/7/2014 – 30/9/2014
$1,380.26
1/10/2014 – 23/12/2015
$1,407.87
The NWE amounts in the table above are those that were contained in the spreadsheet provided by the respondent at the hearing. I accept the respondent’s submissions and reject the claims made by Mr Lieschke. He is entitled to increases in the NWE amounts by reference to the increases in salary as set out in the respondent’s table of fixed remuneration (less superannuation).[7]
[7] Exhibit 1 T10 page 75
CONCLUSION
The decision of the Tribunal is to set aside the decision dated 7 October 2016 and substitute as follows:
(a)The applicant’s normal weekly earnings amount, as at 15 October 2009, for the purposes of s 19(2) of the SRC Act, was $1,239.11;
(b)As adjusted from time to time as per the table herein, the applicant’s normal weekly earnings for the purposes of s 19(3) of the SRC Act as of 23 December 2015 was $1,407.87.
21. I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
..[SGD]….......................................
Associate
Dated: 1 December 2021
Date of hearing: 15, 16, 17, 18 December 2020 and 7 October 2021
Representative for the Applicant: Self-represented Counsel for the Respondent: Mr John Wallace Solicitors for the Respondent: Sparke Helmore Lawyers
0
2
0