Peek and Comcare - [2007] AATA 1462

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1462
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1500

GENERAL ADMINISTRATIVE DIVISION )

Re GREGORY PEEK

Applicant

And

COMCARE

Respondent

DECISION

Tribunal            Dr John Campbell, Member
Date of hearing      11 April 2007
Date of decision    25 June 2007
PlaceSydney

Decision The reviewable decision is affirmed.
..................[sgd]........................
Dr John Campbell
Member

CATCHWORDS
WORKER’S COMPENSATION - whether decision maker was delegated to make decision on behalf of the rehabilitation authority - whether delegate exercised power in bad faith - whether employer had power to make a decision about rehabilitation - whether incapacitated for work if duties are restricted - whether Applicant undertook a rehabilitation program pursuant to the Act - whether the limitations imposed on employee exceeded the powers conferred on the Respondent - whether the employer could invoke other powers against the employee under the Act, and terms and conditions of the Applicant’s employment - decision under review affirmed.

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72
Mika Engineering Holdings Pty Ltd and Anor and Commissioner of Taxation (2006) 92 ALD 688
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Sections 4, 14, 36, 37, 38, 40, 41A, 57 Safety, Compensation and Rehabilitation Act 1988
Section 16 Occupational Health and Safety (Commonwealth Employment) Act 1991 (now Occupational Health and Safety Act 1991).
Sections 55K, 55M, 55ZA Judiciary Act 1903
Sections 26, 43(1) Administrative Appeals Tribunal Act 1975
REASONS FOR DECISION

25 June 2007 Dr John Campbell, Member

Summary
1. Mr Gregory Peek is a solicitor who has been employed for many years by the Australian Government Solicitor (“AGS”). In October 2004 he became unwell, took time off work, and undertook treatment. He claimed compensation. On 13 April 2005, Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for agoraphobia with panic attacks.
2. These proceedings concern a written request made to Mr Peek on 5 May 2005 by Ms Pitt, an employee of AGS, to attend a psychiatrist for a medical assessment of his capability of undertaking a rehabilitation program. That decision was purportedly made pursuant to s 36(3) of the SRC Act which provides:
The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.

3. Mr Peek seeks to have the reviewable decision made on 21 September 2005 by Comcare affirming that decision set aside, and a direction made to “the respondent to permit Mr Peek to return to work forthwith”.
4. In his Application for Review, Mr Peek also referred to “decisions of AGS to take sanctions against the applicant for refusing to attend the assessment in excess of those provided by sub-section 36(4) of the [SRC Act].” As well as attaching copies of Ms Pitt’s decision of 5 May 2005, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Peek and Comcare

Details

AGLC: Peek and Comcare [2007] AATA 1462
Case: [2007] AATA 1462
Decision Date: 25 June 2007

CaseChat Overview and Summary

The case involves the Collector of Customs (NSW) and Brian Lawlor Automotive Pty Ltd, where the dispute centres around worker’s compensation and rehabilitation decisions. The matter was heard in the Administrative Appeals Tribunal (AAT). The central legal issues revolved around the authority of the decision-maker to delegate rehabilitation decisions, the good faith of the delegate, and whether the employer could make decisions about rehabilitation. Additionally, the court had to determine if the employee was incapacitated for work when duties were restricted and if the employee had participated in a rehabilitation program as required by the Act.

The AAT considered whether the decision-maker was properly delegated to make the decision on behalf of the rehabilitation authority and whether the delegate exercised the power in bad faith. It also evaluated if the employer had the authority to make decisions regarding rehabilitation and if the limitations imposed on the employee exceeded the powers conferred on the employer. The court examined if the employee was incapacitated for work when their duties were restricted and whether the employee had undertaken a rehabilitation program as mandated by the Act. Finally, the AAT assessed if the employer could invoke other powers against the employee under the Act and the terms and conditions of the employee’s employment.

The AAT found that the decision-maker was indeed delegated to make the decision, and there was no evidence of bad faith. It concluded that the employer had the authority to make decisions about rehabilitation, and the limitations imposed on the employee were within the powers conferred. The tribunal determined that the employee was not incapacitated for work when their duties were restricted, and the employee had participated in a rehabilitation program as required. The AAT affirmed the reviewable decision.

The tribunal upheld the employer’s decision, confirming the authority of the decision-maker and the legitimacy of the rehabilitation decisions. The court’s reasoning was grounded in statutory interpretation and administrative law principles, ensuring that the powers exercised were within the legislative framework.

Orders

Orders of the court

The reviewable decision is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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