Lower and Comcare
[2008] AATA 352
•2 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 352
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600263
GENERAL ADMINISTRATIVE DIVISION ) Re KEVIN BERTRAM LOWER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member L Hastwell Date2 May 2008
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s normal weekly earnings at 24 July 1990 should include a shift allowance of $103.26 per week. From 7 September 1998, his normal weekly earnings would no longer include shift allowances.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – Commonwealth employees – liability accepted – assessment of normal weekly earnings – no shift allowances or penalties included in normal weekly earnings – structural changes in the workplace and applicant placed on new roster – likelihood that applicant would continue to have received some, albeit reduced, allowances – further restructuring during period of incapacity – thereafter unlikely to receive any allowances – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 ss 8(1), 8(5), 8(10), 9(1), 14, 19
Bortolazzo and Another v Comcare (1997) 75 FCR 385
REASONS FOR DECISION
2 May 2008 Senior Member L Hastwell 1. Kevin Lower (the applicant) worked as an Observer at the Bureau of Meteorology (the Bureau) from the time that he commenced his employment in 1971 until he resigned his employment in 2005 when he resolved his workers’ compensation settlement with his employer.
2. His substantive position throughout his period of employment was as an Observer Grade 1. On occasions he acted in the position of Observer Grade 2. He was paid higher duty allowances when acting in the Grade 2 position. He would also receive shift allowances when on roster.
3. In 1990 he sustained a generalised anxiety disorder in the course of his employment with the Bureau. He ceased work in July 1990. Thereafter he did not return to the workplace and he remained incapacitated for work. He claimed workers’ compensation with respect to this injury.
4. His claim for incapacity took many years to resolve and it was not until 2005 that a consent order was made in this Tribunal whereby the respondent (Comcare) accepted liability to pay compensation to the applicant for the condition of generalised anxiety disorder, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
5. On 23 December 2005 the Tribunal made an order (inter alia) in the following terms:
“The respondent is liable to pay to the applicant compensation in accordance with section 19 of the Act from 24 July 1990 to 27 October 2005 …”
6. Section 19 of the Act provides for compensation for lost earnings.
7. On 1 February 2006 Comcare made an assessment as to the quantum of the applicant’s normal weekly earnings (NWE) for the purposes of his entitlement to compensation pursuant to s 19 of the Act (T20). The period for which compensation was to be assessed was 24 July 1990 to 27 October 2005 (the relevant period). In making this calculation, Comcare did not include any additional allowance payable to the applicant by way of a shift allowance amount. His NWE as at 24 July 1990 were assessed as being his basic weekly entitlement.
8. Comcare accepted that, throughout the relevant period, the applicant was completely incapacitated, and so there was no need to consider what he may be able to earn from any other employment during the relevant period.
9. The reviewable decision of 8 August 2006 (T27) confirmed that the applicant’s NWE should not include any shift allowances.
10. The applicant seeks review of that decision to this Tribunal.
relevant legislation
11. The applicable legislation is found in the Act.
12. Section 19 of the Act provides a mechanism for assessing the compensation payable to an applicant when the Commonwealth is liable to provide compensation.
13. Section 19(2) provides as follows:
“19 Compensation for injuries resulting in incapacity
…
(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. “
14. Section 8(1) of the Act sets out the formula for calculating NWE in the following terms:
“8 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.”
15. Section 8(5) of the Act is relevant in this case and provides as follows:
“(5)Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.”
16. Section 8(10) of the Act provides as follows:
“(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.”
17. Section 9(1) of the Act provides:
“9Relevant period
(1)For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.”
issues
18. The issue to be decided in this case is whether the applicant’s NWE during his period of incapacity should include any shift allowances.
19. This leaves the Tribunal to determine how structural changes in the workplace, that occurred shortly before the applicant ceased work and then subsequent changes that occurred some years later, but during his period of employment, would have affected his entitlement to shift allowances.
the evidence
20. Both parties were represented by counsel. The applicant gave evidence and Mr Butto, the Personnel Manager for the Bureau in South Australia, gave evidence for Comcare. Various exhibits were received into evidence.
21. It was agreed by counsel for both parties that s 8(5) of the Act was applicable in this case rather than s 9(1), and that the allowances paid to the applicant in the two week period immediately prior to the date that he ceased work, because of his incapacity, were not representative of the allowances usually payable to him. They also agreed that allowances averaged over the prior 12 week period were not representative for the purposes of calculating NWE, as during a lot of that period all Observers had been put on a special roster to enable them to gain equal experience prior to interviews for job selection commencing in May 1990.
22. An initial determination made by a payroll officer in December 1990 had used that 12 week period to calculate NWE (T13) and the applicant had initially argued that Comcare was bound to maintain that figure. The applicant did not strongly maintain that position in submissions.
23. The Tribunal was left to determine what other period should be used to fairly calculate any allowances that should be included in NWE. The Tribunal also had to determine whether restructuring in the work place at the time of the applicant’s incapacity, and then again several years later, would have further reduced or removed altogether his capacity to earn any shift allowances.
24. The applicant confirmed the accuracy of his written statement which was received as Exhibit A3.
25. That statement sets out at length his work history at the Bureau. On a number of occasions during his many years of working for the Bureau, he had acted in the position of Observer Grade 2, although his substantive position had remained that of an Observer Grade 1 until all Grade 1 Observers were reclassified to the Grade 2 level in October 1990 after the applicant became incapacitated.
26. In the course of his employment he had frequently been required to do shift work and he had received shift allowances at various times and, more often than not, right up to the time that he ceased work because of his incapacity.
27. As an Observer Grade 1 the applicant was trained in manual plotting of weather charts. An Observer Grade 2 also had some additional electronics training.
28. During his years as an Observer, he had applied two or three times for postings to the Antarctic to work in acting Observer Grade 2 positions, but he was not successful in these applications. These were volunteer positions and were not considered to be “field positions”.
29. At no stage during his 19.5 years with the Bureau, prior to July 1990, had he applied to do field work which involved applying for either a relief position or a term transfer to one of the remote field locations in South Australia, such as Woomera or Ceduna. He has been based in South Australia at the Regional Forecasting Centre (RFC) since 1980, apart from a period of study leave and a brief transfer to Hobart. Special additional allowances were payable for field work.
30. The applicant had twice refused to go to field postings during his employment with the Bureau despite being directed to do so. The first occasion was in 1984 when he was asked to go to Woomera and he asked to be excused from going on compassionate grounds as his brother was going through a “traumatic divorce” at the time and he felt that he should be available to assist his brother during this period. When he was not excused from the direction and he was told that he had to go, he refused to go.
31. The second occasion was in July 1990 when he refused a similar posting to Ceduna on the basis of both conscientious and compassionate grounds, even though management had considered and declined his request to be excused from going. This was immediately before he ceased work due to his illness.
32. He was questioned about his skill with respect to the automated regional office system (AROS) of chart plotting introduced in the late 1980s. He said that he had been operating the new system for over a year when he left his employment in July 1990 and that he had a proper understanding and ability to use the AROS system prior to ceasing work.
33. He agreed that when AROS was being introduced in 1989 he had written to the Regional Director informing him that he intended to revert to manual plotting and would not be performing AROS work (T32). He clarified in his evidence that this was in support of what he understood to be a union initiative at the time to be paid Observer Grade 2 rates to carry out this new work. His evidence was that he reverted to AROS plotting within a number of days after sending that communication as the other Observers were “going along” with the new system. It appears that he went out on his own in writing this letter. Eventually all Observers, including the applicant, were back paid from March 1989 at a higher rate in recognition that they had been acting as Grade 2 Observers during the period of their training on this new system. He would not have received this back pay had he not been working on the AROS system during this time. His evidence was that after a lot of discussions and after it was pointed out to him that it may be in his best interests to keep working on the AROS system, he “backed down and continued to work AROS”.
34. Due to structural changes in the Bureau arising from the implementation of this computerised technology, there were changes in the workplace and to the availability of shift work. Five full-time positions as Observer Grade 2 become available in 1990. There were ten Observers applying for five positions and, in the months leading up to the interviews, the applicant was put on a roster with the other prospective applicants, which was designed to ensure that all the applicants had similar opportunities to gain experience prior to interview. He received shift allowances during this period, which it is acknowledged were not representative of the usual level of shift allowance that he may have received.
35. He was not successful in his application for one of these five positions.
36. The Joint Selection Committee (JSC) who made the appointments reported on 28 May 1990 (Exhibit R8). The report was not complimentary to the applicant and he reacted adversely to it considering that it made statements about his work ability that were “scathing” and “savage”. He interpreted their report as effectively saying that he was incompetent.
37. As a result of that process he was allocated position number 4073 in the Relief Pool. The notice allocating the new position was sent out on 2 July 1990. Almost immediately after receiving notice of the new position he was directed to go to a field position in Ceduna in July 1990 on a temporary relief transfer. He declined to go as he considered this request was entirely inconsistent with the JSC report. He understood he was being sent to do unsupervised Observer Grade 2 work only a matter of weeks after being told he was incompetent. He wanted to resolve his issues with the JSC report with his employer. He told the Tribunal that he believed he had left the door open to the possibility of him going to Ceduna. He ceased work due to his compensable illness very shortly thereafter.
38. He also cited compassionate grounds for not going to Ceduna on this occasion and these related to his father having prostate cancer at the time. He acknowledged that his father was living with his mother and did have other support and that his father had said that he could go to Ceduna.
39. He did not return to work after July 1990. He remained incapacitated thereafter. However, in 1998, during a period that was colloquially referred to as “the Spill”, he applied for a position at Ceduna. He received a letter from the Head Office indicating that positions were being thrown open and Observers were being invited to nominate for positions. He wrote back saying he would nominate for Ceduna as his first choice. His recall was that his second choice was Hobart, and his third Adelaide. He was sent to see the Australian Government Health Service and was found to still be medically unfit and so his application went no further.
40. After the selection exercise in May 1990, he was one of six Observers allocated to the Relief Pool. The effect of this was that he would not be on the roster and would only receive shift allowances when relieving in a position. His base position would be a 9am to 5pm position in the RFC with entitlement to shift allowances only when relieving. He was taken off the roster, but within a week he was put back on to relieve an Observer Grade 2 who was on leave. He remained on the roster until he ceased work on 20 July 1990.
41. As a member of the Relief Pool after 1990, he would have been there to relieve in positions when required. When not relieving, he would be in a day position and not on the roster in the RFC. He was adamant in his belief that even after July 1990, had he been in the Relief Pool position, he would have been receiving ample relief work and ongoing allowances. He firmly believed the shift work would still be there.
42. He acknowledged that he had formally refused the transfer to the position in the Relief Pool shortly before he left work due to his illness, because of the adverse JSC report and his need to resolve the issues that, in his mind, arose from that report.
43. His evidence was that he believed that he would have accepted intrastate or interstate postings if required to do so between 1990 and 2005. His evidence on this point was somewhat difficult to follow. He appeared to acknowledge that in principle it may have assisted his career to accept field postings, but it was clear that he had some difficulty stating unequivocally that he would or could take up field positions. He continued to assert, despite the objective evidence to the contrary, that he had been willing to go to Ceduna in July 1990.
44. In October 1990 all the Observer Grade 1 positions were reclassified to Observer Grade 2.
45. He considered that the fact that he had a history of undertaking no field work prior to July 1990, and his history of having twice refused directives to go to temporary field positions, did not mean that he would continue to refuse to participate in field work into the future.
mr butto’s evidence
46. Mr Butto gave evidence for Comcare. He is the current Personnel Manager for the Adelaide region of the Bureau and the Acting Regional Administrator for South Australia.
47. His three statements and annexures were received as Exhibits R5, R6 and R7. These provided the Tribunal with some comparative payroll figures for other Observers who had been allocated to the Relief Pool in 1990 for the three years after the 1990 restructure.
48. His statement (Exhibit R5) also considered assessments of the applicant’s work performance during his years at the Bureau. He drew certain conclusions from this historical information which included probationer’s reports. He also explained, both in his statements and in his oral evidence, the structural changes to employment at the Bureau that occurred in 1990 and then again in 1997/98, and the consequences that these changes had on the availability of shift work for someone in the applicant's position.
49. At paragraphs 18 to 26 of his statement (Exhibit R5) he described the structural changes that took place at the Bureau in 1990. He expressed the view that had the applicant remained at work after July 1990:
“… He would have continued to work day work with the ability to volunteer to relieve on shift rosters as relief positions arose. His ability to earn shift penalties would have been limited not only by the availability of relief positions, but also by the competition for those places.”
50. He said that once in the Relief Pool, the applicant would have been working 9am to 5pm in the RFC, but with the ability to volunteer for shift rosters as relief positions arose. His ability to earn shift allowances after 1990 was limited by the availability of relief positions and competition for those places.
51. He did not consider that the applicant would be competitive for any sought after relief positions because of his prior work history and reports and his lack of field experience. He said all relief positions were advertised and anyone from within the Bureau’s workforce who had the appropriate qualifications could apply. Applications for relief positions were not limited to the Relief Pool. The Bureau’s preference was to always send a person who volunteered for a position, rather than someone who was reluctant to go. There were usually people who wanted to go because there were financial incentives to do temporary relief positions. It was only if there were no volunteers that someone such as the applicant may be directed to go, which is what had occurred in July 1990.
52. At paragraph 27 of his statement (Exhibit R5), Mr Butto described the national restructuring that took place in 1997 (the Spill). He also provided a copy of the guidelines issued by the Bureau at that time (Exhibit R3). The 1997 national restructure took place as a result of changes to technology which reduced the need for Observers. Observers were required to apply for a National Field Office Posting or a Permanent Posting. Selection was based on merit and had the applicant not been successful in winning one of these positions, his only prospect of any shift allowances after that time was by applying for limited relief positions in remote locations where there would have been other competition for those positions.
53. The National Field Office Pool is referred to in Exhibit R3 in the following terms:
“The National Field Offices Pool (NFOP) consists of a number of positions staffed by employees regarded as moveable field staff who may be called upon to move for periods of time anywhere with the NFOP. …”
At the time, there were 18 Bureau locations, comprising the National Field Office Pool, including far flung places such as Port Hedland, Weipa and Cocos Island.
54. The Permanent Posting positions involved permanent postings to a particular location and staff would remain in that posting unless they “voluntarily apply to move or gain promotion to duties at another location”. Each region had a number of designated relief positions that were also permanent postings and their sole job was to provide relief work at different offices and locations throughout the entire region, which involved work both in the RFC and out of Adelaide at other locations.
55. Mr Butto expressed the view, based on the material available to him, that the applicant was unlikely to be successful in being awarded one of these positions and he therefore would have been deemed to be a surplus Observer in South Australia after the Spill. The surplus Observers were sent a letter identifying a number of Relief Pool positions in remote areas in New South Wales, Western Australia and Halls Creek or they could look at other redeployment options in other areas such as hydrology. The letter, dated 7 September 1998, sent to the surplus Observers after the Spill (annexure 15 to Exhibit R5) stated that they would continue to receive their normal salary, but no shift allowances.
56. He expressed the view that the applicant would not have received any allowances after the restructure in 1997/98 as they would not be available unless he was willing to go to remote places, and even if he was interested then there would be national competition for those postings.
57. Based on the applicant's history as outlined in documentation observed by Mr Butto, he expressed the view that because of the merit based selection process the positions available in the 1997/98 Spill would not have favoured the applicant. He commented in the following terms:
“The merit-based selection process for all positions in the spill including these remaining relief positions would not have favoured an employee like Mr Lower, who had a history of no field experience, who had refused to participate in training and use new technology and who had refused directions to transfer in the past. It is therefore very likely that Mr Lower would not have earned any shift penalties after the spill in 1997/1998 and that he would have remained in a day work position. All Technical Officers working day work after the spill continued to receive their normal salary but no shift penalties.” (Exhibit R5, paragraph 38)
58. The Relief Pool that existed between 1990 and 1997/98 was a pool of permanent officers, there to back-fill positions. Anyone could volunteer to go to a remote location and experience was likely to be a consideration. So if, for instance, an Observer with a permanent position, ie not in the Relief Pool, was successful in volunteering for a remote transfer then the applicant, as a member of the Relief Pool, may have been required to back-fill that position. Shift allowances varied depending on the available position. The fact that a person had a permanent position did not prevent them applying for a relief remote transfer. There were often significant shift allowances available on a relief transfer and this could make it attractive to any Observers to apply.
59. Mr Butto expressed the view that the JSC report indicated that the applicant's work was not up to standard compared to the other applicants and that he would have ranked as one of the lowest level Observers in South Australia at the time.
60. By declining to take up the position in the Relief Pool, he said that after July 1990 the applicant would have been a supernumerary and would have been on dayshift and not receiving any shift allowances.
discussion of the evidence
61. The applicant showed little insight into his own work history, poor performance and the way in which some of his letters, responses and attitudes would be interpreted by his peers and management. His failure to properly prepare in any way for the job selection process in May 1990 and then his outrage at the outcome showed a total lack of insight into what was required of him to maintain his position in an increasingly competitive working environment.
62. His blanket refusal to go to Woomera when directed to do so in 1984, and to Ceduna in 1990, and his stance taken against the AROS system, were examples of the inflexible attitude he took towards aspects of his employment.
63. The annexures to Exhibit R5 confirm that the applicant’s performance of his duties and his overall ability to carry out the duties of his employment in an adequate fashion was a matter of significant concern to his employer from time to time. Paragraph 14 of Exhibit R5 is a reasonable summation of the situation, save that the Tribunal accepts that his principled stand against the AROS system was short lived and he did indeed engage in AROS training.
64. The JSC report was very critical of the applicant suggesting that there may have been some doubt as to whether he was even a genuine candidate for the positions. He was criticised on a number of fronts. The Tribunal must accept this report at face value as being a reasonable depiction at the time of the applicant’s abilities and presentation in comparison to his immediate peers.
65. When all the evidence is put together, the picture is of a below average employee whose work standards and attitude were not good. He showed no interest in doing anything outside what he was strictly required to do. He had a strong sense of his own rights and it appears little sense of putting himself out for anyone in the workplace. He had never in 19.5 years of employment shown any interest in co-operating in field transfers and relieving in field positions that may have enhanced his future prospects and skills, although he had shown interest in a position in the Antarctic.
66. A chart which summarised shift allowances received by three of his peers in the post 1990 Relief Pool for a period from July 1990 through to 1994 was useful (Exhibit R2). This chart shows average employee allowances during that period excluding any allowances earned from remote station placements or promotions.
67. It demonstrates that members of the Relief Pool did continue to receive shift allowances, although possibly at a reduced rate compared to the allowances they may have been receiving prior to the restructure of 1990.
application of the law
68. The Tribunal must determine in this case whether shift penalties or allowances should be included in the calculation of the applicant's NWE during his period of incapacity.
69. Section 8(1) of the Act sets out the formula to establish NWE and the Tribunal must determine whether, as part of that formula, an allowance is applicable in this case and, if so, what that allowance would have been and whether it would be applicable for some or all of the period of incapacity.
70. The parties agree that s 8(5) of the Act applies in this case and that the two week period specified in s 9(1) of the Act is not representative of average allowances payable to the applicant at the time. They also agree that the 12 week period immediately prior to his incapacity does not accurately represent the average allowance that would be appropriate to impute to the equation set out in s 8 of the Act.
71. Comcare’s initial contention was that the Tribunal should find that no allowances at all were payable to the applicant as part of the NWE. Comcare took the position in submissions that if the Tribunal were to find that allowances would have continued to be payable to the applicant after July 1990, and after the restructuring took place, then it was reasonable to rely on the chart provided to the Tribunal (Exhibit R2) which provided the average allowances paid to three other members of the Relief Pool between 1990 and 1994.
72. In Bortolazzo and Another v Comcare (1997) 75 FCR 385, Justice Heerey of the Federal Court considered the application of s 8(10) of the Act. That case involved restructuring in a workforce and the Tribunal, and then on appeal the Federal Court, had to consider whether allowances payable to recipients of compensation prior to a restructure should continue to be paid to them as part of NWE once the restructure occurred. In that case, the restructure had resulted in shift allowances ceasing for those who continued to remain in the workforce. The Tribunal found that the NWE, if calculated to include shift allowances, would result in the compensation that was being paid to the recipients exceeding the earnings that those particular employees would receive if they were not incapacitated for work. This is the very reason for s 8(10) being included in the Act.
73. The Federal Court upheld that interpretation of the Act and Justice Heerey commented as follows:
“… the act is social legislation which ought to be construed, in the event of ambiguity, liberally in favour of injured employees: … The provision of compensation is to operate from week to week; … 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.”
74. The Tribunal is being asked to gaze into a crystal ball in this case and predict the likely course of the applicant's employment over a period of 15 years from the date that he ceased work due to his incapacity.
75. The Tribunal must make its findings based on all the available evidence and on the balance of probabilities.
findings of fact
76. The Tribunal makes the following findings:
·Prior to 1990, the applicant held the position of Observer Grade 1, but from time to time acted at Grade 2 level in his position at the Bureau.
·The applicant received regular shift allowances up until the time that he ceased work in July 1990.
·The applicant was a below average employee at the time that he ceased employment, who lacked motivation and had proven difficult to manage in the workforce at times. It is unlikely that after 1990 he would have been successful in gaining any position that involved promotion on merit and where there was competition from peers for that position.
·The applicant had not at any stage in his working history at the Bureau showed any inclination to volunteer for field postings, although he had unsuccessfully applied to go to Antarctica which is not classified as a field placement.
·The applicant lacked any motivation or interest in field placements and, on the balance of probabilities, the Tribunal finds that his attitude towards the field placements would not have changed after July 1990.
·The applicant was traumatised by the JSC report and, although he had refused the position in the Relief Pool when it was offered to him in July 1990, it is probable that he would have taken up this position once he resolved his differences with respect to the JSC report. His prior back down on his refusal to do the AROS work supports the Tribunal’s view that he would have backed down on his principled stance about the Relief Pool position had he stayed in the workforce.
·After July 1990 the applicant would not have applied for field placements nor would he have received promotions, other than the automatic promotion to Observer Grade 2 that occurred in October 1990.
·It is probable that after 1990, had the applicant been directed to go on field placements, he would have avoided going if at all possible.
·The Tribunal finds that the applicant would have continued to receive shift allowances in line with the allowances received by his peers in the Relief Pool between 1990 and 1997, but excluding any allowances arising from field placements, remote station placements or promotions.
·The working environment in the Bureau became increasingly competitive for Observers from 1989 onwards with the introduction of computerisation and the restructuring of positions.
·The Tribunal finds that the applicant is unlikely to have applied for a position in the National Field Office Pool when the Spill occurred in 1997/98. Such a position required a commitment to movement some considerable distance from Adelaide and the evidence does not support a finding that the applicant would be willing to take on such a position.
·The Tribunal finds that the applicant would not have successfully competed for one of the Permanent Positions that become available after the Spill and he would have become a surplus Observer in 1998 and would no longer have had any entitlement to allowances.
·The Tribunal finds that those Observers that did not achieve a National Field Office Pool position or a Permanent Position ceased to receive shift allowances after approximately September 1998.
·The Tribunal finds that the applicant would have received only his basic wage after September 1998.
decision
77. In the circumstances, the Tribunal is satisfied that the applicant would have continued to receive some shift allowances for some years after ceasing his employment and until the restructure in 1998.
78. The Tribunal takes the view that despite the applicant’s deficiencies in the workforce, he would have continued to receive allowances in line with his peers in the Relief Pool until the Spill in 1998.
79. After 1990 there remained six people in the Relief Pool sharing the relief work. The applicant would have received some relief work in the Adelaide office. The Tribunal is of the view that the fair figure to use for the average shift allowance that should be included in the applicant’s NWE is the figure set out in Exhibit R2, which represents the average allowances of three other employees in the same Relief Pool over the period 1990-1994, being the sum of $103.26 per week. This figure excludes any allowances for remote stations and promotions.
80. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s NWE at the date of his incapacity should include a shift allowance of $103.26 per week and that after 7 September 1998 he would no longer have received shift allowances.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................Associate
Dates of Hearing 14-15 January 2008
Date of Decision 2 May 2008
Counsel for the Applicant Mr S Cole
Solicitor for the Applicant Langsfords Lawyers
Counsel for the Respondent Ms K BeanSolicitor for the Respondent AGS
2
1
0