Lyons and Telstra Corporation Ltd - [2001] AATA 897

DECISION AND REASONS FOR DECISION [2001] AATA 897

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/377

GENERAL ADMINISTRATIVE DIVISION       )
           Re      STEPHEN ANDREW LYONS
  Applicant
           And    TELSTRA CORPORATION LIMITED
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member & Dr D Weerasooriya, Member

Date29 October 2001
PlacePerth

Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being the respondent's determination of 30 June 1999 (at T document, p. 103), is set aside and substitutes therefor that: (a) The respondent is liable, pursuant to s19 of Safety, Rehabilitation and Compensation Act 1988, to pay weekly incapacity payments to the applicant on the basis that subparagraph (a) of the s.4(1) definition of "suitable employment" in that Act applies and that the matter be remitted to the respondent to determine: the applicant's entitlement to weekly compensation from the date of his dismissal, 5 December 1999, to the date he commenced work with Visionstream; the applicant's entitlement to weekly compensation for the period he worked for Visionstream (or Bensons) till May 1999; and the applicant's entitlement to weekly compensation (if any) since, having regard to any subsequent medical assessments of the applicant's fitness for work. (b) That the spinal fusion operation was reasonable medical treatment. (c) The Tribunal orders, pursuant to s.67(8)(b) of the Safety, Rehabilitation and Compensation Act 1988, that the respondent pay the applicant's costs of this proceeding, such costs, in the absence of agreement, to be taxed by the Registrar or a Deputy Registrar of the Tribunal in accordance with the Tribunal's General Practice Direction dated 18 May 1988.

...........(sgd R D Fayle)..........
Senior Member
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 - injury at work – unsatisfactory performance – termination of employment – whether constructive resignation – whether subparagraph s4(1)(a) or (b) of definition of "suitable employment" applies - reasonable medical expenses.
Safety, Rehabilitation and Compensation Act 1988 – ss4(1) definitions, "medical treatment" & "suitable employment", 16, 19 & 40.
Acts Interpretation Act 1901 – s15AA
Pulitano v Telstra Corporation Limited (1988) 50 ALD 1015
Comcare v Chenhall (1996) 69 FCR 201
Burns and Comcare, November 1998, AAT 13448
Bagic and Comcare, November 1993, AAT 8891

REASONS FOR DECISION

29 October 2001 Mr R D Fayle, Senior Member & Dr D Weerasooriya, Member

Mr Stephen Lyons ("the applicant") has applied to this Tribunal to review a determination by Telstra Corporation Limited ("the respondent"), pursuant to the Safety, Rehabilitation & Compensation Act 1988 ("the Act"), to cease liability for weekly compensation payments from 4 December 1998 and deny liability for fusion surgery undertaken in May 1999.
At the hearing Mr Mark Herron of counsel, assisted by Mr Ray Leclezio, solicitor, represented the applicant. The respondent was represented by Dr Geoffrey Flick of counsel, assisted by Mr Callum Fraser, solicitor. Documents filed with the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal. Oral evidence was given by the applicant and, for the respondent, by Ms Purcell, Ms Thompson and Mr R Williams, in person and Mr Hickling by telephone. The following exhibits were taken into evidence:
A1      Handwritten report of Dr Nathan dated 9 February 2000;
A2(a)   Letter from Gibson and Gibson to Dr Nathan dated 27 March 2000;
A2(b)   Reply from Dr Nathan dated 11 April 2000;
A3      Letter fro Mr Bannan dated 26 May 2000;
A4      Letter from Dr Narula dated 30 March 2000;
A5      Letter from Dr Narula dated 1 June 2000;
A6      Proof of evidence of Mr Lyons signed and dated at the hearing on 10 May 2001;
A7      Report of Dr J Hopkins dated 28 August 2000;
R1      Witness statement of Ms C Thompson signed and dated at the hearing on 10 May 2001;
R2      Witness statement of Ms J Purcell signed and dated at the hearing on 10 May 2001;
R3      Witness statement of Mr R Williams dated 7 may 2001;
R4      Results of audit review on 22 October 1998;
R5      Handwritten worksheet of Mr Lyons dated 22 October 1998;
R6      Map of part of Perth metropolitan area; and
R7      Statement of Mr John Hickling dated 10 May 2001.

There were a number of objections made to some of the above exhibits. The respondent objected to the last sentence of exhibit A4 and to exhibit A5 to the extent that it is an opinion on a matter of law. The applicant objected to the last sentence of exhibit R2, the statement in paragraph 6 of exhibit R3; and to R4 and R5 on the grounds of relevance. The Tribunal noted these objections and takes them into account in determining the appropriate weight to be given, if any, to those aspects of the particular exhibits.

The applicant commenced work with the respondent on 22 May 1995. Prior to that he left school after year 10 (which would make him then ~15 years old). He did various labouring jobs for about two and a half years before joining the Royal Australian Navy in 1989 and trained for three months as a quartermaster gunner. He soon changed from that deployment to be a clearance diver assigned to surface ships. He remained in the navy for about 5 and a half years till 1994. He left the navy because he did not feel that the lifestyle suited family life due to long periods of absence from base. He was not then married. The applicant admitted some minor injuries during his navy term but not such that prevented him from continuing in the heavy physical work of clearance diving. He was discharged medically fit. On discharge he went firstly to Queanbeyan, where his family lived and after about six months returned to Western Australia doing various labouring jobs, mainly at Geraldton in the construction industry. It was from that job that he applied for a position with the respondent as a communications officer. His duties required him to do fairly heavy physical work from time to time. That is, he was required to dig trenches with a shovel for cable laying, dig installing pits, lay and join (called jointing) cables and pre-wire houses which involved climbing, lifting, bending and carrying loads.
The applicant is a relatively big man who apparently before his accident (detailed below) was fairly active and played contact sport. He said that the first incident of injury occurred in 1997, whilst working on an installation on a double storey house in Fremantle where he was working in the confined roof space rewiring the house. He felt pain in his lower back, which, he said, got worse as the day progressed. He went to the Belmont Medical Centre after work seeking treatment for his back pain. He was given two or three weeks off work after which he returned to his former full-time job. He said that on 8 January 1998, whilst working on a lead-in trench (a trench dug from the pit to the corner of the house), he needed to remove "a slab of bricks that had been knocked over" and in the course of that activity suffered "really bad pain in my lower back". He did not finish the task, went to the Manning Training Centre to fill out an accident report and then to the Belmont Medical Centre where he saw Dr Pang. It is that incident that the applicant claims led to his ongoing back pain and treatment, including the operation by Mr Narula, neurosurgeon, in May 1999, a subject of this review.
The applicant returned to work about eight weeks after the incident in January 1998. The respondent appointed Ms Jenny Brown as the applicant's rehabilitation provider. Following the incident the applicant underwent considerable conservative treatment including physiotherapy, pool exercises, walking, analgesics and was assigned light duties at work. Despite this, the applicant felt that there was no significant improvement in his back pain.
At the time of the injury in January 1998, the applicant was part of a working group whose manager was Ms C Thompson. He was assigned within that group to a team, whose leader was Ms J Purcell. Ms Thompson and Ms Purcell each gave evidence. Ms Thompson said that she judged that Ms Purcell as an appropriate team leader for the applicant. The applicant was answerable in the first instance to Ms Purcell. It became obvious to the Tribunal that Ms Purcel did not find the applicant an easy person to manage and that the applicant believed that he was not always being fairly dealt with by Ms Purcell. Initially, it seems that the applicant's relationship with Ms Thompson was quite friendly as he offered to buy an article duty-free for her when he went to Bali on his holidays. However, as Ms Thompson was later required to counsel the applicant in regard to apparent unsatisfactory performance, that relationship deteriorated. Eventually, in the course of the applicant's rehabilitation he was put into a different work situation under the supervision of a Mr Peter Saligari where he worked on a part time basis. This work involved using a computer (for which he needed training), answering telephones and speaking with customers. He said that he enjoyed this work and was getting on well with Mr Salargari. It was about this time, the beginning of December 1998, having been cleared by his doctor that he was to commence full-time light duties. However, that never happened because the day before he was dismissed.
In the opinion of the Tribunal the applicant was not entirely forthcoming or always cooperative at the hearing. He had a tendency to be evasive when asked questions he did not like and his veracity on occasions was questionable. However, whilst the applicant's behaviour (discussed below) cannot be condoned, his evidence, mentioned below, asserts mitigating circumstances. The Tribunal formed the opinion that the applicant may have some justification for his apparent anger as it related to the manner in which he was treated during his rehabilitation back into the work force after his injury. However, the Tribunal also notes that some of the accusations of unsatisfactory performance levelled at the applicant preceded his injury of January 1998 and, in the opinion of the Tribunal, were justified.
In her written statement (ex. R1) Ms Thompson lists the occasions on which the applicant was counselled and documents those with attachments. The first occasion was on 12 December 1997 and involved five separate issues. The first two issues relate to alleged substandard work; the third to an alleged failure to follow proper procedures; the fourth related to alleged poor customer contact skills, allegations of having made an unusually large number of calls by the applicant for assistance without commensurate productivity increases; and some criticism of the quality of his work. The final issue discussed related to Saturday, 1 November 1997, when he was rostered to overtime for which he claimed eight hours work even though he went to the city to do duty free shopping without authorisation. The counselling report contains the following observations by Ms Thompson:
"[The applicant] agreed the work at Shirley Avenue was below standard. His behaviour was defensive and he state the felt he was being picked on.
…
[the applicant's] behaviour was defensive and he stated that checking the microfiche isn't standard practice to verify what cables run through the pit.
…
Tthe applicant] took offence to the way his Team Leader spoke to him and thought he was being victimised. He does not like to be questioned and mentioned he had not had any complaints or issues with his previous Team Leaders. He also thought Team Leaders should look after their own.
…
Tthe applicant] accepted he needed to accept responsibility for his work standards and "Do it right the first time". His Team Leader also agreed Quality before Quantity. Feedback:- [the applicant] has some difficulty accepting feedback. He doesn't listen to the issues and can become argumentative. His behaviour includes sulking, throwing things, abuse, frustration and irrational ranting. [The applicant] doesn't have good communication skills and deals with his frustration's (sic) by blasting the Team Leader to get it of (sic) his chest.
…
When questioned about his actions [relating to the overtime incident] he stated he didn't know why he did it. He claimed he had not done this before and would not do it again in the future.
The report notes that each incident had been verbally discussed with the applicant at the time it occurred and with the exception of the overtime incident, had all been discussed previously with him on 31 October 1997. The applicant was advised that the report was a formal counselling session, it contained an action plan including identifying training opportunities, forsaking his overtime claim and for the applicant to "look at and modify his behaviour and work quality to the accepted standards". Ms Purcell, the team leader and Ms Thompson, the manager, both of whom were present throughout the interview, signed the document. The report contains the following handwritten inscription opposite the space provided for the applicant's signature – "6/1/98, 4.00pm refused to sign". The explanation for the date 6 January 1998, when the interview took place on 12 December 1997, is that it took till then to have the report prepared and typed.
Meanwhile, on 22 December 1997 a meeting was held at which Ms Thompson, Ms Purcell, Mr Paul Kelly, Branch Secretary of CEPU (the union) and the applicant were present. The purpose of the meeting was to ascertain the applicant's entitlement to overtime which it had been assumed he had forsaken at the 12 December 1997 meeting. It was agreed at the 22 December 1997 meeting that the applicant would be paid for the actual work done on Saturday, 1 November 1997, until 12.30 pm. The record of that meeting (attachment CT 2) contains the following:
"Mr Kelly was also briefed on the formal counselling session 12/12/97 relating to the additional issues and customer complaints. He was also advised of a new customer complaint received about [the applicant] on Friday 19/12/97."

All four in attendance signed the record.

The next attachment to Ms Thompson's statement, CT3, is a record of an interview on 28 October 1998 concerning the applicant's behaviour. Ms Thompson conducted the interview with the applicant in the presence of Ms Purcell. All three signed it. The applicant wrote "(sited)" beside his signature. When asked why, the applicant said that his union representative had advised him that if he was forced to sign something with which he disagreed then he should write in "sighted" beside his signature. He did not know why. When queried in cross-examination, the applicant said he did not know why he did not put in writing, for the record, his specific objections to the report. The minute records several incidents, including references the previous meetings of 12 and 22 December 1997 and another incident which, it was alleged, occurred on 29 October 1997. That latter alleged incident related to the applicant's failure to report for duty and respond to calls made to his employer issued mobile telephone. The applicant said on this occasion that he was at home and went to his doctor. He provided a medical certificate. It should be noted that the 8 January 1998 injury referred to earlier occurred subsequent to the previous meeting on 22 December 1997 and before this interview. The attachments to Ms Thompson's statement, CT3 –CT6, are reproduced below, except that in the case of CT3 (already mentioned), a document headed "Warning & Written Performance Improvement Plan", it begins on the second page.
6/1/98 Poor Performance issued in relation to Mobile Phone usage for September 1997 – over five times expected usage.
6/1/98 Request for Explanation issued to Steve for customer complaint received by Team Leader 19/12/98. The Customer complaint was in relation to Steve's attitude and manner to the customer.
23/9/98 Meeting held with Steve, Jennifer Brown -Rehabilitation Case Manager, and Jenni Purcell to discuss return to work project. Steve was advised to contact his Team Leader for all absences from the field, start stay and finish on the Job, hand in his daily work sheets to his Team Leader after 4.10pm each day, and imagewear to be well maintained and worn at all times. Steve was issued with a mobile telephone and advised it was only for use to contact or be contacted by his Team Leader and Rehabilitation Case Manager. He was given appropriate directions in how to complete the project he was undertaking.
8/10/98 Team Leader spoke to Steve in regards to his arrival to the Manning office at 3.40pm today and during the previous 3 days. He was reminded that his hours of duty were 7.30am to 4.10pm and he was required to start stay and finish on the Job.
9/10/98 Steve was spoken to about his appearance and lack of imagewear and advised that his dress code was unacceptable.
12/10/98 Steve spoke to the SDM to ask about use of his vehicle for trips to the pool for his exercise programme, and that he did not attend his team's Business Awareness Workshop because the Team Leader had not informed him. Christine advised that he could not use his vehicle as he only had a commuter Use Agreement, and he should contact his Team Leader for queries of this nature, and she would speak to the Team Leader re BAW.
14/10/98 Steve was again advised by his Team Leader that his standard of dress was not acceptable.
21/10/98 Steve attended a doctors appointment on 21/10/98, failed to notify his Team Leader and did not deliver his daily work sheet until 22/10/98.
22/10/98 Steve arrived at Manning at 3.40pm to deliver 2 daily work sheets and left. His Team Leader tried unsuccessfully to contact him from 3.45 pm to 4.00pm and again at 4.30pm. None of these calls transferred to Messagebank as per the process.
EXPLANATION AS TO WHY THE UNSATISFACTORY PERFORMANCE IS CONTINUING
Steve was unable to provide any explanation for his behaviour in any of the events. When questioned did he understand what was required in terms what's described as required standards in Key Tasks, he replied he was "crystal" clear. The SDM asked Steve to describe in his own words what was required and he repeated the Key Tasks.
KEY TASKS
Participation in return to Work Rehabilitation programme/s. Participate in Team events-
EXPECTED RESULTS
Steve's hours of duty are 7.30am to 4.10pm and he is required to start, stay and finish on the job at all times. When he is absent from the job he must inform his team leader. Steve is required to follow his Team Leaders directions at all times.
An improvement is required in Steve's appearance and grooming. His image wear should be well maintained and worn at all times.
Team Leader is first point of contact for all issues.
Immediate improvement in overall image and attitude.
ACTION REQUIRED TO SUPPORT STAFF MEMBER TO CORRECT HIS OR HER PERFORMANCE
The Team Leader is available to coach you when required. The service Delivery Manager is the escalation point as per the Fair Treatment Process.
Training will be provided for all tasks required to be performed by Steve. The Team Leader will review your performance monthly or as required.
REVIEW
Your performance will be reviewed monthly by the team leader and a formal review will take place between the team leader, service Delivery Manager and yourself after three months or sooner if applicable.
As your Manager, I expect that there will be no further instances of poor performance by you. This is a Final Written warning. Further instances of less than satisfactory performance as listed above will lead to further action which may eventually result in the termination of your employment.
FIRST REVIEW DATE 27/11/98
Service Delivery Manager (signed by C Thompson)
Team Leader (signed by J Purcell)
I Steve Lyons acknowledge this to be an accurate account of the record of interview and am aware that my continued failure to meet required performance standards could result in my dismissal.
EMPLOYEE'S SIGNATURE (signed by the applicant with"(sited)" added)

The next document (CT4) is on Telstra letterhead, dated 29 October 1998 and addressed to the applicant at his place of work.
Steven Lyons 39468276
C&C Service
West Coast Metro SDA
FINAL WRITTEN WARNING
This is to record that as a result of the interview on 28th October 1998 for misconduct as described in the attached Warning and Written Performance Improvement Plan, you are now being issued with a final written warning.
As your Team Leader, I expect that there will be no further instances of this misconduct and I strongly recommend that you take this opportunity to improve your behaviours and performance as described in the Written Performance Improvement Plan.
Any further instances of misconduct of this nature may result in termination of your employment.
As stated in the interview, your conduct will be the subject of ongoing review over the next 3 months, although this final written warning may be removed from your file after 24 months at your request provided no further warnings are given over this period.
Signed by J Purcell
Team Leader -The Glades
I Steven Lyons acknowledge this warning and am aware of the consequences of continued unacceptable behaviour.
[Signature] (Not signed, but bears a hand written notation "Refused to sign – J Purcell; witness C Thompson SDM")
The next attachment, (CT5) is an unsigned copy of a letter from the respondent.
C&C Service. WA
West Coast Metro
Cnr Ley St & Manning Rd Manning 6152 WA Australia
Telephone 0894500217
Facsimile 0894508169
Mobile 041 894 7258 .yons
Mr S Lyons
6c Cale Street
Como W A 6152
Steve,
Your attendance is requested in my office at the Manning Operations Centre on Tuesday 10 November, 1998 at 3pm.
I need to discuss with you issues which relate to events on 22 October, 1998 as reported to me by the Criminal Investigations Branch on Monday 2 November, 1998.
You may have an observer or a representative from your Union present at the interview.

Christine Thompson
Service Delivery Manager

The final attachment in this respect (CT6) is a record of interview that occurred on 10 November 1998.
Record Interview
Interview\discussion details: Reported events of 22/10/98
Staff member Name: Steve Lyons
Employee Number: (provided)
Date and Time of Interview: 10 November 1998, 3pm
Location of Interview: Manning Operations Centre cnr Ley Street and Manning Road Manning
Manager Conducting Interview: Christine. Thompson (Service Delivery Manager)
Others Present: John Waters - COL 7 and Wayne Cooper - CEPU representative.
Details of Unacceptable Behaviour
1. On the 22/10/98 Mr Lyons was absent from work .without satisfactory explanation
2. Failed to protect the Telstra brand by actions which do not reflect company values
3. Failed to obey lawful directions given to him by Team Leader
4. Breach of his commuter use vehicle agreement
5. Falsified work sheet claiming completed work that was not done
On the 2/11/98, two Police Officers from the Criminal investigations Branch (CIB) Perth requested an interview with Ms Jennifer Purcell, Team Leader of the Applecross Team to assist them with their investigations. The inquiries centred on identifying the driver of a Telstra vehicle licence number lADT 146 which took part in the funeral procession of the murdered "Bikie Gang" member at around 2pm on 22/10/98. It was alleged that the driver of this vehicle took part in the funeral procession between approximately 2pm and 2.30. On arrival at the Karrakatta cemetery, the driver parked the Telstra vehicle in Railway Road over the road from the main gates of the cemetery and then proceeded to enter the cemetery. The Police Officers indicated the driver was also seen attending the funeral service.
(Mr Lyons had been participating in a Return to Work (RTW) program which involved him painting the Distribution Area (DA) number/s on pillars in specific suburbs in the south metro area)
According to Telstra's local Fleet records, Ms Purcell identified the driver of the vehicle as Mr Lyons, Communications Officer Grade 3. The Police Officers told Ms Purcell they would contact Mr Lyons and question him in relation to his involvement in the above matters. The Police Officers later contacted Ms Purcell and confirmed Mr Lyons had admitted his involvement in the procession and attendance at the funeral service. They also commented Mr Lyon's account of his activities on the day involved other activities unrelated to employment with Telstra.
Ms Purcell audited the work claimed to have been completed on 22/10/98 and found of the 16 DA's only one (1) appeared to have been completed, however the quality was very poor. The remaining 15 DA's were not painted, 2 of these are no longer DA's and have been removed.
Mr Lyon's conduct during the RTW program has demonstrated he is incapable of working with minimal supervision and therefore future programs and options for rehabilitation will be limited.
Mr Lyon's Explanation
I explained to Mr Lyons that I was investigating reported events of the 22/10/98 and I asked him if he could recollect his movements and activities for the day and tell me what work he completed for the day in question. Mr Lyons said he didn't remember and responded by asking me what did I want to know. Mr Lyons did not volunteer any information so I drew his attention to the work sheet he had completed for work done on 22/10/98. I asked him if this was a true and accurate record of the work he had completed and he responded yes. I asked him what time he had started work on the 22/10/98 which according to his record keeping was at DA 17 FremantIe "C" Shed. He replied he didn't know. When I asked him what time he left home he said about 7.25am. He said he was sure of the time because he had heard it on the radio as he was leaving his home. I asked him how long it took him to drive to his destination to which he replied about 20minutes. I asked him why he hadn't started on the job at 7.30am in compliance to company procedure to which he responded he didn't know. Mr Lyons agreed he had been reminded at team briefs and also at 1:1's spanning a 4 year period of the requirement to start and finish on the job. Mr Lyons also acknowledged and agreed that he had not complied with the requirement to advise his Team Leader when he was late to commence work. He offered no explanation.
Mr Lyons went on to explain how he had worked continuously through the day doing the work as described in his work record. He claimed at approximately 1.45pm he had to return home to Como to change his shoes and socks as a result of spilling paint on them and left the field from Fremantle via Canning Hwy arriving home at about 2pm. Mr Lyons said he had left home at about 2.1Opm and arrived back on the job at 2.45pm and continued working until approximately 3.4Opm.
I asked Mr Lyons if there was any information he wished to add or change in his explanation to which he replied no. I asked him if he was sure his recollection of events was as he described and he responded yes.
When I told Mr Lyons I had information from the CIB which conflicted with his version of events, he admitted he got caught in the traffic when he was returning to the job via Stirling Hwy at 2.1Opm. I asked him why he did not return to the job via the same route he had taken earlier using Canning Hwy and he replied Stirling Hwy was quicker. When I suggested that his response did not appear to be logical, that he would choose different routes for going and returning based on his comment one way was quicker than the other, Mr Lyons shrugged and said he didn't know. (see attached location map which illustrates my reason to doubt his explanation)
He claimed he only stayed at the funeral service for a few minutes to watch the proceedings. He denied a Police Officer had asked him to move his vehicle. Mr Lyons stated he did move his vehicle from the original stopping point to the public car park to find a tap to wash his hands which he claims were covered in paint. I asked him why he didn't wash his hands when he was at home changing his shoes and socks and he replied he didn't notice the paint on his hands at that time.
Mr Lyons stated he returned to work in Fremantle after only stopping briefly at the cemetery.
I challenged Mr Lyons regarding the time he claimed he had ceased duty, stating he had returned his work sheet to the Manning Operations Centre at 3.4Opm. Mr Lyon's cessation work time is 4.1Opm on the job. Mr Lyons shrugged his shoulders and said he couldn't remember. When questioned about the work claimed for the day and presented with the audit findings of only one DA being painted, Mr Lyons replied if he didn't believe the DA's required painting, he didn't paint them. He couldn't remember which DA's he had painted and which DA's had not been painted. Mr Lyons admitted in response to my questions, that he had been instructed by his Team Leader to paint all of the DA's. He further admitted that by recording the DA's on his daily work sheet he had deliberately misrepresented the volume of work completed.
Unsatisfactory Behaviour

Failed to start and finish on the job.
Failed to advise his Team Leader of his lateness at commencing work. Being absent from work without notifying his Team Leader.
Ceased duty early and claimed 8 hours 10 mins on his time sheet.
Use of a Telstra vehicle for private use which is a breach of his commuter use agreement.
Falsified his daily work sheet claiming work completed that was not done.
NB: Following the interview of 10/II/98 a further six (6) days of work were randomly selected and were audited by Brian Day, Communications Officer Grade 6. Of these. approximately 50% of the work claimed had been completed. However the majority of this was substandard and the remainder of the work claimed had not been completed.
At the beginning of the RTW project Mr Lyons was given Number Stencils and cans of spray paint to perform the task of repainting the DA numbers. He was also requested to return the daily work sheets to his Team Leader each day at the Manning Operations Centre so that together they could review the effectiveness of the project and his personal rehabilitation whilst participating in the RTW program.
It was obvious from the audit that the stencils had not been used in most cases and Mr Lyons had attempted to hand paint the numbers which has contributed to the sub standard quality. On most days Mr Lyons dropped off the daily work sheets prior to the company finish time of 4.1O pm and did not contact his Team Leader to discuss any pertinent issues regarding the RTW program. This behaviour had been challenged by his Team Leader on previous occasions and his ongoing actions in this area had resulted in a performance improvement plan being instigated by the Team Leader.
Improvement Required
Mr Lyons has been briefed on all of the requirements to meet compliance with Telstra's policies and procedures and has previously been given the work instructions which clearly describe what is required from him. Mr Lyons indicated he was "crystal clear" and understood what was expected of him as an employee of Telstra.
Telstra's standard Code of Conduct and policies and procedures are reinforced on a continuous basis at team briefs, 1:1 's and at Performance Review and Development Plans.
Mr Lyons has recently been given a performance improvement plan for breaches to the Code of Conduct and quality of work. The first review date of this plan being 27/11/98.
There are also other occasions on record where the Team Leader has removed him from performing certain duties in response to customer complaints and consolidate his development.
Consequences
A satisfactory explanation for the areas detailed below did not result from the interview;
Failed to start and finish on the job.
Failed to advise his Team Leader of his lateness at commencing work.
Being absent from work without notifying his Team Leader.
Ceased duty early and claimed 8 hours 10 mins on his time sheet.
Use of a Telstra vehicle for private use which is a breach of his commuter use agreement-
Falsified his daily work sheet claiming work completed that was not done.
Mr Lyons has a history of misconduct and has continued to demonstrate total disregard for compliance with work instructions and the Company's code of conduct. In previous counselling interviews Mr Lyons has given a commitment to comply with the Company's requirements and directions. However, his actions of the 22/10/98 would indicate that he continues to breach the trust and opportunities which have been afforded to him and therefore I believe has not learned anything from previous counselling interviews. Mr Lyons did not demonstrate any emotion or remorse throughout the interview.
I do not believe Mr Lyons will improve his behaviour to meet the standard required and therefore recommend summary dismissal.
TWO-UP MANAGER'S SIGNATURE: (signed by Christine Thompson)

The Tribunal makes some observations in relation to this report, based on the oral evidence of the applicant. In relation to the customer complaint (Shirley Avenue, Mt Pleasant), the applicant admitted that the original work was below expected standard but denied that he did it. He said that it was another Telstra communications officer who was called to assist him as it was a double storey house. He said it was this officer's work which was substandard and his only fault was not checking that person's work which was his responsibility. The applicant was not examined on his early finishing time but he did not deny them either. In regard to the alleged excessive use of the mobile telephone prior to his accident in January 1998, he asserted that it was not unusual when compared with other officers doing the same job, a fact simply not proven and in direct contradiction with the evidence. In this regard, the applicant's claim that at least 80 to 85 percent of the usage was making work related calls, is simply not credible.
In regard to his having left work on Saturday, 1 November 1997 without permission, to go duty-free shopping, the applicant maintained that it was all done in his lunch hour. However, Ms Thompson's evidence is that they had arranged to meet the previous Friday evening to do the duty free shopping (to buy a watch for her) but the applicant never turned up. She said that he called the next day, apologised saying something about getting caught up socially, and offered to do the shopping there and then. Ms Thompson said she took time to get ready and travel to the city to meet the applicant and spent about half an hour with him. On that basis it is hardly credible that the applicant was away from his field work in the suburbs for less than the hour he is allowed for lunch. Also, the fact that he was prepared to accept payment for the overtime that day up till 12.30 pm does not support his answers. It is the Tribunal's impression that the applicant is not a person who would willingly forego and entitlement to overtime if he was rightly entitled.
A great deal of hearing time was taken up examining the applicant in relation to the alleged involvement in the "Bikie funeral". The Tribunal is satisfied that much of what the applicant asserts in that regard is not credible in the light of the report by the CIB to Ms Purcell (which was not challenged). It is not credible that the applicant went home to change his shoes and socks because paint spilt on them – he was using spray cans not open cans of paint. It is not credible that the applicant, who asserted that he does not have a good understanding of the geography of north of the river, would take a northern route back to the work site in Fremantle instead of the well known Canning Highway route which, by reference to the map (Ex. R6) is clearly closer to his home in Como. The applicant is asking the Tribunal to accept his version of events in this regard. These include his explanation as to why he stopped outside the entry to the cemetery. He said he stopped there to go to a tap to wash paint from his hands. That is, paint which he had not previously noticed even though he had been home to change garments on which he alleges paint had spilt. The other explanation given relates to the reason he was in the procession. He said he was not in the procession but behind it having been caught up in it whilst leaving the Narrows Bridge. And further, he said that his lights were on because there was an electrical fault such that the lights went on each time he started the ignition. He alleged that he demonstrated this to the police officers, whom he said, accepted his explanation. There is no corroborating evidence of this alleged electrical fault in his vehicle. Finally, it is beyond plausibility that the applicant would deviate from the direct route back to his work place and end up at the cemetery, (which he said, in contradiction to earlier evidence, that he just drove past), unless he intended to be amongst the mourners. The Tribunal prefers the evidence of Ms Thompson in this regard and has no reason to doubt that the CIB report to Ms Purcell was reliably conveyed to the Tribunal.
On the matter of whether the applicant did the work which he asserted in his work sheet that the did on the day of the "Bikie funeral", the compelling evidence as reported by Ms Thompson in relation to audits carried out by both Ms Purcell and another senior officer, the Tribunal concludes that he did not do that work but at best he painted just one DA that day. In the Tribunal's opinion, his false work sheet was part of his cover-up to hide the fact that he attended the "Bikie funeral" that day, without permission and used the respondent's signed vehicle in an unauthorised way. In cross examination of Ms Thompson by Mr Herron for the applicant the following relevant exchange occurred:
MR HERRON: Well, you'd resolved, it seems to me, or what I'm putting to you, you'd resolved as at the date of this document on 10 November 1998, to terminate Mr Lyons' employment?—On this – on the date after this – following this interview, or after we'd had this interview and my assessment of the way that Mr Lyons – well, basically he denied the whole thing, didn't he? He just told one lie after another. Based on his conduct at that interview it was quite clear to me that he had no intention of putting the best foot forward, shall we say, apart from just continue the way he was going. So, my recommendation made following this incident and based on the interview from this incident was that we dismiss.
So there was no point in going ahead with the performance review?—Well, yes, there is. Because the recommendation may not be approved. (Tr. P.82, lines 18-31)
In fairness to the applicant, the Tribunal is of the opinion that there is some merit in the applicant's claim that after his accident he was not always well treated by Ms Purcell and later by Ms Thompson. The Tribunal makes some relevant observations in relation to the applicant's treatment by the respondent during the post-injury period, from January 1998, to his eventual dismissal in December 1998. These observations are circumscribed by the Act's definition of "suitable employment" in s4(1), which appears later in these reasons. That definition sets out three specific matters and one general matter to which the respondent must have regard when prescribing what is "suitable employment" in relation to a person who has suffered an injury in respect of which compensation is payable under the Act. Up until his injury on 8 January 1998 the applicant's duties toward the respondent were circumscribed by his position as a Communications Officer, Level 3. That involved the applicant in activities including driving to sites; speaking with customers; detecting faults; going up and down ladders to access rooves; digging trenches and laying cables from pits to houses to connect wires; going down manholes; pulling and jointing cables; and testing lines for faults etc. After the incident on 8 January 1998 the applicant was restricted physically in what he could do and was put into a rehabilitation program administered by Ms Jenny Brown, as provided by s37 of the Act. Whilst the applicant failed to undertake satisfactorily all duties assigned to him during this period, in the opinion of the Tribunal those particular duties were not strictly part of his rehabilitation in terms of s40 of the Act. That is, the painting of the DAs is not a standard job ordinarily assigned to employees. And it is questionable whether the "ride on" jobs (referred to below) were standard having regard to the applicant's limited physical ability to be of much help in the field as a communications officer. The evidence is that in fact those jobs were arranged for the applicant to keep him occupied and active. The respondent never contended that those were mainstream jobs specifically relevant to the applicant's rehabilitation. On the other hand, the training which the applicant received whilst working with Mr Salagari's team (mentioned later), would appear to the Tribunal to be appropriate rehabilitation to get the applicant back to full-time work in a mainstream job and into a job for which the applicant would be suited.

The applicant said he had confidence in his assigned rehabilitation coordinator, Ms Jenny Brown, who worked hard to get him back into the full-time work force although his back prevented a return to his previous job. He said that despite her efforts he found himself doing very little or menial jobs – he regarded the painting of the DAs in that latter category. Ms Thompson admitted that it was not a usual work task but arranged especially for the applicant as, it seems, was his "ride-on" assignment, which required him to accompany a field officer but he had no defined duties. The applicant told the Tribunal that he felt somewhat persecuted by Ms Purcell and he believed that there was some sort of conspiracy between her and Ms Thompson to check on his every movement. The Tribunal accepts the applicant's evidence that when he was previously assigned to a male team manager (before his injury) they got on well and when, about a month before he was retrenched, he was assigned to Mr Salagari's team he was enjoying his work in the "pre-wiring section". That involved telephone discussion with customers and providing advice in relation to future telephone line connections, which he said he enjoyed because he felt his experience was valuable and he was helpful. He also asserted that for that month he was respected by his fellow workers who often asked his advice since he had the relevant experience. He was retrenched from the employ of the respondent on the eve of his having received a medical report to return to full-time light duties, which he assumed, would include working in Mr Salagari's team. He said he was very upset when he was given notice and admitted that his verbal exchange with Ms Thompson was not respectful at the time.
The applicant's employment with the respondent was terminated on 4 December 1998 on the basis of "misconduct". In January 1999 the applicant secured employment on a casual basis with an employment agency, Bensons, that supplied staff to a company called Visionstream. Mr Ray Williams and Mr John Hickling, were both formerly with Visionstream at the time that the applicant was working there. Each gave evidence in relation to this employment. Dr Flick, for the respondent, attempted to establish that the applicant had indeed made an arrangement with Visionstream or Bensons, its representative, prior to the applicant's retrenchment on 4 December 1998. The applicant simply denied that to be the case saying he made the initial approach in late December just prior to Christmas, to a person whom he knew and who previously had worked with the respondent. That person was then with Bensons, which the applicant understood recruited workers for Visionstream. The applicant said that his contact was aware of the fact that he, the applicant, had suffered a back injury with the respondent. Mr Hickling said that he was not informed that the applicant had a pre-existing injury of any type. On the other hand, Mr Williams, who had a more direct contact and supervision of the applicant, said that he was informed by the applicant that he had a pre-existing back injury which he suffered whilst working for the respondent.
The job description for the applicant's position with Visionstream was fairly consistently explained by the applicant, Mr Williams and Mr Hickling, although the latter admitted having almost nothing to do with the applicant on a day to day basis.
The Tribunal is satisfied that what the applicant did with Visionstream was in significant ways, different to his pre-accident (pre-8 January 1998) job with the respondent. The job at Visionstream involved relatively light duties compared to that with the respondent. At Visionstream the applicant was a cable jointer. This involved jointing cables in one of two locations. The first were located in manholes (a metre or so below ground). The job required the applicant to climb down into the manhole to carry out the cable jointing. The other type of jointing was done on new housing estates. It involved sitting on a stool beside a pit, probably about 600 ml deep, having pulled each end of the cable from the pit in preparation for jointing. In regard to the latter, the applicant lifted an ergonomically designed pit cover, weighing about 4 or 5 kilos, off the pit, reached down and dragged out the cable weighing less than a kilo. The cable's diameter varied according to whether it was a 10 pair, 20 pair, 30 pair or 100 pair, a pair being two wires to joint. There was relatively no strain in getting the cables out of the pit because they had been laid leaving 2 or 3 metres of cable to enable jointing. Jointing was done sitting on a stool beside the pit. The applicant carried a small gas bottle from pit to pit. It provided the gas for the jointing operation. The applicant would do about 5 or so cable jointings in an average day. The pit jointing was done on new residential development sights where the cables had already been laid and the manholes, pillars and pits had already been wired and it was necessary to join the cables running into the pit with those running from the pit to the house block. The former work, involving access to manholes, required joining cables, which had been previously replaced as a matter of routine maintenance. In either case the applicant was not required to do any heavy lifting, digging, carrying or pulling. The applicant said that he remained in this job until about 20 May 1999, prior to the back surgery.
The Spinal Fusion Operation
Mr Soni Narula, Neurosurgeon, operated on the applicant on 27 May 1999 performing an L5/S1 internal fixation using interbody lumbar cages. The applicant was seen by Dr Jeremy Hopkins, Consulting Orthopaedic Surgeon, on 21 August 2000, at the behest of the respondent, for the purpose of making a fresh medical assessment. Dr Hopkins' report (Ex. A7) conveniently summarises the relevant history, supported by the applicant's own evidence. Dr Hopkins was not called to give evidence. Despite a last minute attempt to call Mr Narula, he was not available to give evidence either in person or by telephone. Essentially, prior to the hearing the respondent had indicated to the applicant's solicitor that Mr Narula would not be needed for cross-examination. Dr Hopkins' report states, inter alia:
"… Having reviewed the available records, interviewed and examined the patient (the applicant), I now submit a detailed medical report in answer to your request.
The following details of interview are those obtained from [the applicant] (unless otherwise specified).
HISTORY:
Occupation/Work Duties:
At the time of the injury, [the applicant] was employed as a linesman for [the respondent] and had been working for them for three years.
Initially he worked digging ditches, putting cabling in rooves and in new houses. Also subsequent to that he spent time installing new lines in existing houses and climbing in rooves and the like. He worked full-time.
Prior to joining [the respondent], he was in the Royal Australian Navy from 1988 to 1994, entering the Navy at the age of 17 years. His work in the navy was as a clearance diver.
Since ceasing work with [the respondent], he has not undertaken any other employment.
Mechanism of Injury/Sequence of Events:
[The applicant] states that initially in 1997 he was in a roof and experienced low back pain and pain down his left leg as far as the foot, which came on over a day. He consulted his general practitioner that night and was put off work for approximately two weeks and was prescribed medication. His symptoms improved to the point that he was able to return to work on light duties and ultimately to full duties.
From that point on he said his back would play up at times, particularly if he was standing or bending for long periods of time.
He states that on 8 January 1998, he was moving a slab of bricks and picked up four bricks at a time, bending down to do so, when he experienced severe pain in his low back, causing him to stop working and attend his general practitioner again.
Initial/Early Treatment Received:
[The applicant] was told he had a muscle strain and was advised to rest at home. Physiotherapy was initiated which continued for approximately three weeks. The physiotherapy aggravated his symptoms and he therefore consulted his general practitioner again, who referred him to another general practitioner, who arranged for an MRI and CT scan.
Subsequent Progress/Specialist Management:
[The applicant] was subsequently referred to a pain specialist, Dr Finch.
Dr Finch undertook three day case procedures, initially trying a local anaesthetic injection to the nerve root, the to the disc and ultimately a discogram was undertaken. This demonstrated a rupture of the L5/S1 disc, which had been suggested on the MRI scan. Injection of this disc reproduced his pain severely. There was a minor degree of disc pathology at L4/5.
He was then referred to Dr Narula, Neurosurgeon who, quite clearly from your enclosures, was not keen on operative intervention initially and considered that [the applicant] should continue with conservative management for some time, particularly in view of the fact that he appeared to have unrealistic expectations of what could be achieved following surgery.
This state of affairs continued for some time and [the applicant] was not keen to persist with conservative management. He was therefore referred to Dr Bannan, Neurosurgeon, for a further opinion. There was some discussion as to whether or not he should undergo a two level fusion at L4/5 and L5/S1, but Dr Bannan advised that it was reasonable to consider a fusion at this point, seeing his symptoms had not resolved, but it should be confined to one level at L5/S1.
As a consequence of this he subsequently underwent surgery on 27 May 1999, undergoing an L5/S1 fusion with cages and bone graft inserted posteriorly.
Initially there was little change in the first six to eight months post-operatively. He continued to experience leg pain but his condition began to improve and the pain almost resolved. He found that he was able to walk and be active in the pool without great difficulty, but if he overdid things, he would become uncomfortable.
However, his pain increased again, for reasons which he is unclear. He thinks he last saw Dr Narula earlier this year and no new instructions were given. He is unsure if he is due to be seen again. He has been advised that it takes at least 12 to 18 months or more for such fusion procedures to reach their end point.
…
SUMMARY AND ASSESSMENT:
[The applicant] clearly sustained an injury to his L5/S1 disc, presumably initially in 1997, which gave rise to some damage to the disc which was then further injured in January 1998.
His injury has not produced any overt major disc extrusion or protrusion sufficient to cause pressure on nerve roots that can be elucidated. It is likely therefore that the pain in his leg may well be referred pain.
His current presentation of the non-anatomical sensation alteration is pain behaviour and due to some degree of overlay and is not due to nerve root compression.
…
His discogram also appears to have demonstrated quite easily the disc lesion at L5/S1.
…
At the present time no further surgical intervention is required.
With regard to the specific questions set out in your letter of 11 August 2000, I would advise that:
…
3. Whether you believe that [the applicant's] condition is related to his employment with [the respondent]
His current condition, in my opinion, is related to his employment with [the respondent], as it was in that employment that he sustained his injury in 1997/1998. That injury as described is the cause of his current status and the necessity for surgery.
4. Whether in your opinion, the surgery undertaken by [the applicant] (sic) was reasonable.
With regard to whether or not the surgery was indicated, one can argue either way.
To wait for a reasonably prolonged period of time to ensure that patient really understands and is keen to go ahead with a one-level fusion and then undertake the fusion is appropriate and is orthodox treatment. On the other hand, adopting a more conservative approach, such as Dr Edibam suggested, is also within orthodoxy of current treatment.
Either way, the end point of recovery is prolonged and will take at least two to three years, in my opinion.
If surgery had not been undertaken, I consider he would have made a gradual but slow improvement over time. As to whether or not this would occur any quicker or slower than surgical intervention is impossible to say. Nevertheless, in the context of modern orthopaedic practice, the ultimate decision to offer him a one-level fusion was reasonable within modern treatment protocols.
…"
The T documents contain several reports and letters from and to Mr Narula relating to the applicant's treatment and operation. It is clear from those documents that Mr Narula went to considerable lengths to explain to the applicant the possible overall effects of spinal fusion surgery, including a clear warning of the chance of either no change or being worse as a result. It is also clear that Mr Naurla took the precaution of having the applicant submit to another surgeon for a second opinion and it was as a result of that opinion that Mr Narula altered the extent of the intended spinal fusion to one-level. In a letter to the applicant on 30 April 1999 in response to the applicant requesting the respondent to fund the proposed operation, it said:
"In view of the reasons stated in your letter dated 29 March 1999 and the fact that you are aware of the limitations of such surgery and the impact it will have on you I have agreed to approve an operation for a one level fusion to your spine in accordance with Mr Narula's recommendations."
The respondent, on 21 May 1999, authorised the Mount Hospital to charge fees, estimated to be $5,500 in relation to the hospitalisation of the applicant for the "lumbar sacro infusion" (T.87).
The Legislation
The relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") are set out below:
Interpretation
4(1) In this Act unless the contrary intention appears:
…
"medical treatment" means:
(a) medical or surgical treatment by, or under the supervision of,
a legally qualified medical practitioner;
(b) therapeutic treatment obtained at the direction of a legally
qualified medical practitioner;
(c) dental treatment by, or under the supervision of, a legally
qualified dentist;
(d) therapeutic treatment by, or under the supervision of, a
physiotherapist, osteopath, masseur or chiropractor registered under
the law of a State or Territory providing for the registration of
physiotherapists, osteopaths, masseurs or chiropractors, as the case
may be;
(e) an examination, test or analysis carried out on, or in
relation to, an employee at the request or direction of a legally
qualified medical practitioner or dentist and the provision of a
report in respect of such an examination, test or analysis;
(f) the supply, replacement or repair of an artifical limb or
other artificial substitute or of a medical, surgical or other
similar aid or appliance;
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and
surgical supplies and curative apparatus, whether in a hospital or
otherwise;
"suitable employment", in relation to an employee who has suffered
an injury in respect of which compensation is payable under this
Act, means:
(a) in the case of an employee who, on the day on which he or she
was injured was a permanent employee of the Commonwealth or a
licensed corporation and who did not subsequently terminate that
employment-employment by the Commonwealth or the licensed
corporation, as the case may be in work for which the employee is
suited having regard to:
    (i) the employee's age, experience, training, language and other
skills;
    (ii) the employee's suitability for rehabilitation or vocational
retraining;
    (iii) where employment is available in a place that would
require the employee to change his or her place of residence-whether
it is reasonable to expect the employee to change his or her place
of residence; and
    (iv) any other relevant matter; and
(b) in any other case-any employment (including self-employment),
having regard to the matters specified in subparagraphs (a) (i),
(ii), (iii) and (iv);
SECT 16
Compensation in respect of medical expenses etc.
16. (1) Where an employee suffers an injury, Comcare is liable to
pay, in respect of the cost of medical treatment obtained in
relation to the injury (being treatment that it was reasonable for
the employee to obtain in the circumstances), compensation of such
amount as Comcare determines is appropriate to that medical
treatment.
(2) Subsection (1) applies whether or not the injury results in
death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical
treatment shall, in a case where the treatment involves the supply,
replacement or repair of property used by the employee, be deemed to
include any fees or charges paid or payable by the employee to a
legally qualified medical practitioner or dentist or other qualified
person for a consultation, examination, prescription or other
service reasonably required in connection with that supply,
replacement or repair.
(4) An amount of compensation payable by Comcare under subsection
(1) is payable:
(a) to, or in accordance with the directions of, the employee;
(b) if the employee dies before the compensation is paid and
without having paid the cost referred to in subsection (1) and
another person, not being the legal personal representative of the
employee, has paid that cost-to that other person; or
(c) if that cost has not been paid and the employee, or the legal
personal representative of the employee, does not make a claim for
the compensation-to the person to whom that cost is payable.
(5) Where a person is liable to pay any cost referred to in
subsection (1), any amount paid under subsection (4) to the person
to whom that cost is payable is, to the extent of the payment, a
discharge of the liability of the first-mentioned person.
(6) …
SECT 19
Compensation for injuries resulting in incapacity
19. (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 compensation to
the employee in respect of the injury, for each of the first 45
weeks (whether consecutive or otherwise) during which the employee
is incapacitated, of an amount calculated under the formula:
  NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to
earn in suitable employment.
(3) …
(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:
(a) where the employee is in employment-the amount per week that
the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee
received an offer of suitable employment and failed to accept that
offer-the amount per week that the employee would be earning in that
employment if he or she were engaged in that employment;
(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.

Submissions and Reasons for Decision

It is acknowledged by the Tribunal that whilst there is no direct reference to the submissions by Mr Herron for the applicant, the Tribunal is indebted to him for those submissions which have been taken into account in its following deliberations.
Dr Flick, for the respondent, submitted, in terms of the s4(1) of the Act's definition of "suitable employment", that the facts of this case support the view that paragraph 4(1)(a) does not apply. The import of that conclusion would be that the respondent is not obliged to find work for which the applicant is suited. The corollary is that paragraph 4(1)(b) applies and "suitable employment" embraces any [suitable] employment within the constraints of the provision.
Dr Flick submitted that having regard to the factual matrix surrounding the respondent's decision in December 1998, to dismiss the applicant for unsatisfactory performance, that this decision was inevitable and solely a consequence of the applicant's own behaviour. In other words, by those very actions which persisted in different forms of abuse of the norms of satisfactory behaviour despite early warnings and counselling, the applicant brought upon himself his own termination of employment. That is, his termination of employment under those circumstances was tantamount to constructive resignation brought about by a serious breach of the contract of employment. Dr Flick submitted that in the circumstances it cannot be concluded that the applicant "did not subsequently terminate that employment".
The Tribunal understands from this submission that the expression "who did not subsequently terminate that employment" (in the s4(1)(a) definition of "suitable employment"), implies a causal relationship between the termination and the instigator of that termination. That is, it does not deal with situations where the employee, him or herself, terminated their employment by their own motion, e.g. by giving appropriate notice of resignation. So, if a permanent employee, subsequent to the injury in respect of which compensation is payable, resigns that employment, then paragraph (a) of the s4(1) definition of "suitable employment" has no application.
The Tribunal understands that the respondent's submission relies on determining a culpability factor in relation to the termination of employment. Despite the objective fact that the respondent gave notice to terminate the applicant's employment, it was submitted that that was entirely precipitated by a situation of the applicant's own making arising from repeated breaches of the terms of his employment. The evidence is that when counselled by Ms Thompson on the occasions of his earlier breaches of regulations, in response to the question of whether he understood what was expected, he answered that it was "crystal clear".
Dr Flick referred the Tribunal to a published article in support of his submission that that interpretation of s4(1)(a) of the Act would promote the Act's object and purposes. Section 15AA of the Acts Interpretation Act 1901, states:
SECT 15AA
Regard to be had to purpose or object of Act
15AA. (1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

The purpose or object of the Act is recited at its very beginning as:

LONG TITLE
An Act relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers' compensation for those employees and certain other persons, and for related purposes

In the Tribunal's opinion, there is nothing to indicate that the s4(1) of the Act's definition of "suitable employment" in paragraph (a) is ambiguous or unclear as to its meaning. To adopt a view that the expression "who did not subsequently terminate that employment", as meaning something other than its literal or objective meaning, is not open to the Tribunal. To find otherwise would require the Tribunal to conclude, in the case of a justified enforced termination of the employee, consequent upon serious breaches of the employee's terms of employment, that that should be taken to be termination instigated by the employee. In the Tribunal's opinion that interpretation is not a conclusion which the Tribunal can reach on the basis of the clear words of the statute alone and in the absence of any judicial direction to the contrary. This conclusion finds some support in Comcare v Chenhall (1996) 69 FCR 201 (Heerey J) at page 205 where his Honour said:
"Mr Chenhall fell within par (a) of that definition ["suitable employment"] since on the day of the injury he was a permanent employee of the Commonwealth who did not subsequently terminate his employment – it was terminated by the Commonwealth."
For that reason the Tribunal is of the opinion that the respondent did not escape its obligations imposed upon it by the s4(1) definition of "suitable employment" paragraph (a) by the mere act of justifiable termination of employment. The Tribunal offers a comment in defence, even though unnecessary having regard to the foregoing reasons. In the Tribunal's opinion, it may create a very stressful work place environment for an employee on workers' compensation who finds him or herself subject to a management seeking to make their situation untenable in a return to work programme. The Tribunal is not suggesting that that situation prevailed in the present case although it has found as fact that there were circumstances where the applicant's return to work programme was, on occasion, frustrated by the respondent despite his rehabilitation coordinator, Jenny Brown, doing her best to assist. But on balance, it is open to the Tribunal to find as fact, and it has so found, that the applicant was culpable and to that extent the respondent's decision to terminate his employment was justified.
The previous conclusion reached by the Tribunal pre-empts it having to express an opinion on whether the applicant's employment with Visionstream from January 1999 to May 1999, was suitable. In any event, having regard to the applicant's then injured state and the debilitating effect that the injury was having on him, it is open to the Tribunal to conclude, if it had to, that that was "suitable employment" in terms of the Act's s4(1) definition of "suitable employment" paragraph (b). That is, it was employment that the applicant could perform satisfactorily having regard to his age, experience, training and skills and that it was available locally. The principle reason that the Visionstream employment was suitable in the circumstances was that it did not require the applicant to lift or pull heavy weights, dig trenches or work in a confined space such as under a roof. For those reasons it was a significantly different job to that performed by the applicant prior to his accident in January 1998. The Tribunal received no evidence as to whether the tasks performed by the applicant at Visionstream were within a job classification with the respondent. The evidence, such as it was, is that Visionstream was contracted to the respondent to carry out telephone cable laying and connections in newly developed housing estates and to carry out standard repairs of existing telephone cables. As such, it might be said that the job that the applicant did for Visionstream is a job that may have been available with the respondent. The Tribunal can take the matter no further.
Was the spinal fusion operation reasonable in terms of s16?
The respondent submitted that by the applicant working with Visionstream following his termination of employment from the respondent, he demonstrated that his back injury was not as severe as he made out. That is, it was submitted that his duties at Visionstream were sufficiently similar to his pre-injury duties with the respondent to indicate that his back injury by then had resolved sufficiently to allow him to carry out those duties. This, it was submitted, is supported by the fact that the applicant did not openly disclose to Visionstream (or Bensons the employer) his previous back injury and his ongoing compensation in relation to it. Further, it was submitted that the applicant was able to perform his duties at Visionstream without complaint for about 5 months. These facts, it was submitted, point to a conclusion that his back was not paining or restricting him anywhere near the degree that he asserted to the respondent and to Mr Narula. Further, it was submitted that the evidence shows that the applicant had a very unrealistic expectation of how the operation offered would get him back to his pre-injury condition and life-style. And it was for that reason that the applicant insisted on having the operation. Therefore, it was submitted, in those circumstances the operation was unreasonable. The respondent relied on the medical report of Mr Edibam, orthopaedic surgeon (T37), in which he reported on 15 May 1998, after an examination and review of radiological reports, that "surgical intervention is not called for". Mr Edibam also expressed the view that:
"[t]he claimant [the applicant] has not received any specific treatment directed to this disc protrusion, it is only time and patience which will resolve his condition."
Whether or not Mr Narula or Mr Bannan were provided with Mr Edibam's report of 15 May 1998 it was their view subsequently that the spinal fusion to be performed in May 1999 was reasonable. Neither Mr Bannan or Mr Edibam were called to give evidence and the Tribunal was unable to get oral evidence from Mr Narula, as mentioned. Mr Narula, in his letter to the applicant's solicitors of 1 June 2000 (Ex. A5) stated that:
"there was no doubt in my mind that it was reasonable for [the applicant] to undergo surgery given his condition. In this regard he was also asked to seek a second opinion which was obtained and the insurers informed."
In the Tribunal's opinion there is ample evidence from two specialist orthopaedic surgeons that the spinal fusion operation was, at the time and in the circumstances, reasonable medical treatment for the applicant to obtain. That opinion also finds support in the medical report of Dr Hopkins referred to above (Ex. A7).
Decision
For the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being the respondent's determination of 30 June 1999 (at T document, p. 103), is set aside and substitutes therefor that:
(a) The respondent is liable, pursuant to s19 of Safety, Rehabilitation and Compensation Act 1988, to pay weekly incapacity payments to the applicant on the basis that subparagraph (a) of the s.4(1) definition of "suitable employment" in that Act applies and that the matter be remitted to the respondent to determine:

the applicant's entitlement to weekly compensation from the date of his dismissal, 5 December 1999, to the date he commenced work with Visionstream;
the applicant's entitlement to weekly compensation for the period he worked for Visionstream (or Bensons) till May 1999; and
the applicant's entitlement to weekly compensation (if any) since, having regard to any subsequent medical assessments of the applicant's fitness for work.

(b) That the spinal fusion operation was reasonable medical treatment.
(c) The Tribunal orders, pursuant to s.67(8)(b) of the Safety, Rehabilitation and Compensation Act 1988, that the respondent pay the applicant's costs of this proceeding, such costs, in the absence of agreement, to be taxed by the Registrar or a Deputy Registrar of the Tribunal in accordance with the Tribunal's General Practice Direction dated 18 May 1988.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member & Dr D Weerasooriya, Member
Signed:
................................(sgd S Railton)................................
Associate
Date/s of Hearing  10 & 11 May 2001
Date of Decision  29 October 2001
Counsel for the Applicant        Mr M Herron, barrister
Solicitor for the Applicant         Mr R Leclezio, Gibson & Gibson
Counsel for the Respondent    Dr G Flick, barrister
Solicitor for the Respondent    Mr C Fraser, Downings Legal