Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 214
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/300
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY MARK PELGRAVE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date11 March 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and:
(a) the Tribunal remits the decision to the review officer who made that decision:
· to determine, in relation to the period from the date when the applicant was last employed in about May 1998 until 30 June 2000, the amount of compensation (if any) which Comcare is liable to pay to the applicant by reference to these reasons for decision, including in particular the finding that the applicant was able to achieve earnings in suitable employment with the Commonwealth during that period, and the finding as to the kinds of employment that constituted suitable employment for the applicant; and
· to determine, in relation to the period from 1 July 2000 to the date of this decision, the amount of compensation which Comcare is liable to pay to the applicant by reference to these reasons for decision, having regard in particular to the finding that the applicant has been unable to earn any amount in suitable employment during that period;
(b) the Tribunal determines that Comcare is liable to pay to the applicant the amount of compensation (if any) determined by the review officer in accordance with paragraph (a) of this decision in relation to each of the periods referred to in that paragraph;
(c) the Tribunal reserves liberty to apply within 14 days in relation to the costs of the proceedings, and orders that in the absence of such an application, the respondent pay the costs of the proceedings; and
(d) the Tribunal reserves liberty to apply within 14 days in relation to the implementation of this decision.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – Australian Airlines employee – incapacity for work – ability of injured employee to earn in suitable employment – determination of what constituted suitable employment – applicant’s former employer ceasing to carry on business – business carried on by new owner of former employer – applicant failed to seek suitable employment for part of relevant period – whether failure to seek suitable employment was reasonable – consideration of other relevant matters – failure by Comcare and Qantas to consider request to assess applicant’s capability of undertaking a rehabilitation program – request for employment or assessment of capability of undertaking a rehabilitation program did not lapse – incorrect assertion by Comcare that suitable employment had previously been offered to applicant – decision under review set aside and remitted to the review officer to determine compensation payable.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 19 and 69(da)
Qantas Sale Act 1992 (Cth), s 27
Re Pelgrave and Comcare,(AAT 8578, 5 March 1993)
Re Pelgrave and Comcare [2002] AATA 301
Pelgrave v Comcare (2002) 36 AAR 1
Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665
Re Scibberas and Commonwealth of Australia (1991) 24 ALD 224
Brennan v Comcare (1994) 50 FCR 555
Hendy v Repatriation Commission (2002) 72 ALD 112
Benjamin v Repatriation Commission (2001) 70 ALD 622
Queensland Medical Laboratory & Ors v Blewitt & Ors (1988) 15 ALD 440
Woodbridge v Comcare (1994) 20 AAR 196
Riley v Comcare (1994) 48 FCR 449
Re Pane-O’Neill and Comcare (1997) 49 ALD 340
Re Gaffney and Australian Postal Corporation (1994) (AAT 9924, 22 December 1994)
J & H Timbers Pty Ltd v Nelson (1971-1972) 126 CLR 625
Mechanical Advantage Group Pty Ltd v George (2003) 25 NSWCCR 368
Prica v Comcare (1996) 44 ALD 46
Re Slater and Telstra [2002] AATA 597
Telstra v Slater [2001] FCA 149
Re Sadek and Commonwealth (1988) 14 ALD 769
REASONS FOR DECISION
11 March 2005 Deputy President D G Jarvis 1. This matter has a long history. Anthony Mark Pelgrave injured his wrist on 2 May 1987 while working as a baggage handler for Australian Airlines. He received compensation in respect of incapacity resulting from that injury until 5 June 1989. Payments of compensation were then discontinued on the grounds that Mr Pelgrave had been offered the opportunity to train as a ticketing officer, but had refused to undertake the course of training for that work. Comcare asserted that this constituted a failure without reasonable cause to undertake a rehabilitation program provided for him by Australian Airlines. The airline later terminated his employment with effect from 26 June 1989. Over the period from 1990 until May 1998, Mr Pelgrave engaged spasmodically in various forms of manual employment, and he received unemployment benefits when he was out of work.
2. After his compensation payments were terminated on 5 June 1989, Mr Pelgrave claimed continuing compensation pursuant to s 19 of the relevant legislation, which is now called the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “1988 Act”). His claim was disallowed by Comcare, and this disallowance was ultimately affirmed by Senior Member Kiosoglous of this Tribunal in a decision dated 5 March 1993 (Re Pelgrave and Comcare, (AAT 8578, 5 March 1993), the “1993 decision”). There was no appeal from the 1993 decision. The proceedings were heard in 1992, but for simplicity I will refer to them as “the 1993 proceedings”. I will refer to the 1993 decision in further detail later in these reasons.
3. On 4 August 1998, Mr Pelgrave suffered increased discomfort in his left wrist and shoulder whilst using a mattock in his backyard. He sought medical attention, and claimed that he had been incapacitated for work since that date.
4. On 10 September 1998, Mr Pelgrave claimed rehabilitation and compensation for “recurrent (left) wrist pain – old scaphoid fracture and degenerative changes” contributed to by using the mattock (exhibit A2, pages 61 – 67). His claim was refused by Comcare on 3 November 1998, and the refusal of his claim was affirmed in a reviewable decision by a review officer on 30 November 1999.
5. Mr Pelgrave, by his solicitors, made a further claim for compensation in a letter to Comcare dated 23 May 2000, asserting that Mr Pelgrave had been left with “significant restrictions to the use and function of his left arm” as a result of the injury on 2 May 1987. They then referred to medical opinions, including a report from the treating surgeon, Mr Hayes, dated 23 September 1999 (incorrectly referred to in this letter as being dated “23 September 1989”), to the effect that Mr Pelgrave was not fit for work as a baggage handler. They further asserted that the injury to Mr Pelgrave’s left arm had left him with a significant restriction in his capacity for work and that he had been unable to obtain suitable employment since about May 1988. They requested pursuant to s 36 of the 1998 Act that an assessment be made of his ability to undertake a rehabilitation program. This request was not acceded to.
6. Mr Pelgrave’s solicitors also wrote to Qantas (the successors to Australian Airlines) on 23 May 2000 to say that Mr Pelgrave had been left with substantial disability as a result of the injuries to his left wrist and shoulder sustained on 2 May 1987. They advised that he was prepared to undergo any appropriate re-training and asked whether Qantas was able to provide any work which might be within his physical capacity. Qantas did not reply to this letter. Mr Pelgrave’s solicitors sent a copy of the two letters dated 23 May 2000 to the Australian Government Solicitor (“AGS”), who was acting for Comcare.
7. A delegate of Comcare rejected Mr Pelgrave’s further claim on 1 August 2000, and this decision was affirmed in a reviewable decision by a review officer on 1 December 2000.
8. Mr Pelgrave then applied to this Tribunal for review of the reviewable decisions made on 30 March 1999 and 1 December 2000 respectively. I will refer to the resulting proceedings in this Tribunal as “the 2002 proceedings”. On 2 May 2002, the Tribunal, constituted by Senior Member Kiosoglous, affirmed the two decisions under review. In relation to the first decision, the Tribunal decided that the injury at home using the mattock was a fresh injury which did not occur during or in the course of his employment, and in any event Mr Pelgrave had recovered from that injury. In relation to the second decision, the Tribunal found that it was “satisfied that the applicant (had) not sought work in accordance with s 19(4)(e) of the Act” (Re Pelgrave and Comcare [2002] AATA 301, at [98]).
9. Mr Pelgrave appealed against the rejection of his claim for compensation for partial incapacity. On 16 August 2002, Merkel J allowed his appeal on the grounds that the Tribunal had failed to make findings as to what constituted suitable employment for the applicant, and the amount able to be earned in that employment, for the purposes of s 19(1) and (3)(a) of the 1988 Act. His Honour accordingly remitted the matter to the Tribunal to be determined in accordance with law (Pelgrave v Comcare (2002) 36 AAR 1). The present proceedings involve the re-hearing of the application for review of the reviewable decision made on 1 December 2000, in accordance with the remitter from the Federal Court.
Issues Before the Tribunal
10. The issues before me in the present proceedings are as follows:
(a) what constituted suitable employment for Mr Pelgrave; and
(b)what amount per week (if any) is Mr Pelgrave able to earn in such employment.
The second of these issues in turn involves the following further issues:
(c)whether Mr Pelgrave received an offer of suitable employment and failed to accept that offer;
(d)whether Mr Pelgrave has failed to seek suitable employment;
(e)whether any failure by Mr Pelgrave to accept an offer of employment or to seek suitable employment was, in the opinion of this Tribunal (standing in the shoes of Comcare) reasonable in all the circumstances; and
(f)whether there are any other matters which this Tribunal (acting in the above capacity) considers relevant.
11. It was accepted in the proceedings before me that as a result of his injury at work on 2 May 1987, Mr Pelgrave has been partially incapacitated for work since 4 August 1998.
12. Following the remitter by the Federal Court the matter was re-listed to commence on 13 November 2003. In his opening on that date, counsel for Mr Pelgrave contended that, contrary to Comcare’s assertions in its Statement of Facts and Contentions, Australian Airlines had not made an offer of suitable employment, namely employment as a ticketing officer. Counsel for Comcare then said that this contention had caught Comcare by surprise, and submitted that, having regard to the 1993 decision, it was not open to Mr Pelgrave to dispute that such an offer of employment had been made. As a result, the hearing was adjourned. In subsequent directions hearings I heard argument as to whether either party would be estopped from re-litigating this issue.
13. During these directions hearings it appeared to me that there were certain potential ambiguities in the findings made in the 1993 decision. I accordingly directed that Mr Pelgrave should file and serve an amended Statement of Facts, Issues and Contentions and a statement setting out what portions of the T-Documents, exhibits and transcript in the 1993 proceedings and in the 2002 proceedings Mr Pelgrave sought to rely on in the present proceedings. I further directed the respondent to file and serve a reply to the above matters, indicating whether any of the material sought to be relied upon was disputed, and whether in consequence Comcare proposed to adduce any oral evidence. These directions shortened the hearing time before me, but it has been necessary for me to review much of the evidence and documentary material from the earlier proceedings, including the Tribunal’s findings, being material upon which the parties rely.
Background
14. The following facts were not in dispute, and are derived from the documentary evidence before me and from the evidence of Mr Pelgrave.
15. Mr Pelgrave was born on 27 July 1966. He left school at the end of year 11 at the age of 17, but it appears that this was a transition year and he had been unsuccessful in his year 10 exams. He commenced work with Australian Airlines as a baggage porter in 1984. He was working in that position when he injured his left wrist and left shoulder on 2 May 1987.
16. After the termination of his employment by Australian Airlines in June 1989, Mr Pelgrave worked spasmodically in various jobs from 1990 until May 1998. These jobs were in South Australia and Queensland, and in each case involved manual work. He has a forklift certificate and a palette loading certificate. He does not have any computer skills. He has not been employed since about May 1998. His last employment was as a trades assistant for an electrician based in a suburb of Adelaide.
17. Following the incident using a mattock in his backyard, Mr Pelgrave consulted his general practitioner and later an orthopaedic surgeon. He had undergone surgery on his left wrist in 1988 and 1992. He underwent surgery on his left shoulder on 27 January 2000.
18. In the 1993 decision, the Tribunal reviewed the relevant medical evidence in detail. The evidence indicates that Mr Pelgrave sustained a significant injury to his left wrist. The Tribunal found that on the medical evidence Mr Pelgrave should have been able to work in an office situation such as the ticketing division of Australian Airlines. The Tribunal also appeared to accept that Mr Pelgrave was not fit to resume his duties as a baggage handler, and further that a job stacking dirty dishes eight hours a day would not be appropriate work as this would cause discomfort in his wrist.
19. In the 2003 proceedings, the Tribunal found, at [97], that Mr Pelgrave continues to suffer from his wrist injury, is unable to perform heavy manual labour and is unable to perform his pre-injury duties as a baggage handler. I agree with these findings, which were not challenged in the proceedings before me.
20. In a report dated 22 October 2001, Dr Graham Long, a consultant occupational physician, summarised the history of Mr Pelgrave’s injury and subsequent condition, and then said:
“He alleges that his left wrist and shoulder symptoms had been gradually increasing in the period leading up to an incident in the garden in 1998 using a mattock and although his wrist and shoulder were aggravated in that incident, this aggravation had probably largely resolved within a year or two of that injury. He still complains of left wrist and shoulder pain and restriction but his shoulder is now generally pain free at rest and he retains a near full range of active shoulder movement. He is mainly troubled by his constant left wrist discomfort, which is easily aggravated with hand activities, but he obtains some relief and wrist support with the use of his splints.
With respect (sic) the specific questions raised in your letter of referral, it would appear that Mr Pelgrave sustained quite substantial disruption to his left wrist in the 1987 work injury with a fracture of the scaphoid, tear of the triangular fibro cartilage complex (TFCC) and chondral damage to the radio lunate joint with resultant synovitis and degenerative changes. He also injured his left shoulder rotator cuff complex with subsequent development of bursal impingement. …
Given his current left wrist complaint I would agree that he is no longer suited to most manual labouring work and would also be precluded from a wide range of factory assembly/process work where this requires the use of both hands. This is because repetitive or forceful wrist actions are likely to result in an increase in his wrist pain and restriction and an acceleration of the degenerative joint changes which were initiated as a result of his initial joint injury.
Similarly he would be expected to have increase (sic) wrist discomfort and joint inflammation with extended periods using a computer keyboard with his left hand. He would not be precluded from using his right dominant hand for such work however and with a supportive splint he should be able to use his left hand for short periods provided his (sic) is supplied with a wrist rest and a suitable work station which takes account of his height.
He should be able to perform a range of administrative and clerical tasks if available provided this work can be done predominantly with his right dominant hand.” (exhibit A12, pages 5 to 6).
21. Comcare also tendered a Vocational Assessment and Employment Targeting Report on Mr Pelgrave, prepared by Personnel Placement Consultancies Pty Ltd. A copy of this report was sent to Mr Pelgrave’s solicitors on 6 November 2003. It relates to a vocational assessment made of Mr Pelgrave on 29 October 2003. It records the documents reviewed, as well as the results of various assessments used to identify a range of jobs which, it is said, could be undertaken by Mr Pelgrave, “taking into consideration his demonstrated skills and abilities, education, work history and training, together with details of medical limitations and job-seeking preparation requirements” (exhibit R4, page 2). The report narrates Mr Pelgrave’s employment history, the injury he sustained and his subsequent treatment. It also includes an account of the various tests and questionnaires used by the company in making the assessment, and a summary of the assessment results. After discussing the results, the report states:
“Mr Pelgrave’s work history and lack of formal qualifications, licenses (sic) or certificates suggests he would be suited to mainly unskilled, practical type roles involving little requirement for administration or clerical skills. Jobs for which he may be suited to include Mailing Clerk, Filing Clerk, Service Station Attendant or basic customer service type roles.” (exhibit R4, page 9).
22. The report then proceeds to list potential jobs for Mr Pelgrave, in the following terms.
“The jobs listed below are potential jobs that may need further exploration with respect to whether the physical demands match Mr Pelgrave’s capacity. These jobs may include ones that are within Mr Pelgrave’s capacity but in which Mr Pelgrave is not interested. These potential jobs may not be readily available in the current labour market and further research may be required in order to establish an accurate job match, and whether work is reasonably available.
· Centrelink Band 1 (APS 1 & 2) … · Console Operator · Courier Driver · Service Station Attendant · Car Park Attendant · Mail Clerk · Customer Service Officer · Mobile Phone Sales Consultant · Retail Sales Assistant” (exhibit R4, page 9).
Later the report records the following specific question and response:
“12.2 Given the state of the actual employment market what positions would be available to a person in the applicant’s position, both within the Commonwealth and general State employment market.
I have listed above several job options for which Mr Pelgrave would be suited to based on his work history, aptitude, skills and restrictions as detailed in the medical reports provided. These jobs currently exist in the labour market, and detailed position descriptions follow overleaf.” (exhibit R4, page 10).
Attached to the report is a copy of what appear to be detailed position descriptions for some nine different specific positions with named employers. The descriptions include the salary applicable to each of the positions. It is not clear from the information relating to the mail clerk whether the position is a permanent, part-time or casual position. The console operator position is described as a casual position. The other positions appear to be permanent, and in many cases, the positions were also for casual or part-time work. The Centrelink position was the only position with the Commonwealth.
Evidence of applicant as to seeking suitable employment
23. In a witness statement dated 14 July 2003 (exhibit A15), Mr Pelgrave asserts that his only source of income since he last worked in about May 1988 has been a newstart allowance paid by Centrelink. He says that in addition to registering with a job-seeking agency, namely Status Employment Services of Marion, he has looked for employment in The Advertiser each day, in The Weekend Australian and in the local Messenger. In addition, he has examined the list of job vacancies at Centrelink’s offices. However, he said he has not identified any employment that would be suitable for him having regard to his injury, job skills and training. Through the job-seeking agency he applied for rehabilitation through the offices of the Commonwealth Rehabilitation Service (“CRS”), but was advised that he was not eligible for assessment by CRS, and no rehabilitation program or service has been made available to him either by CRS, Qantas or Comcare.
24. In his oral evidence Mr Pelgrave said that he had applied for rehabilitation through a job case manager at CRS on three occasions. He said further that a person from a job club told him that he could not meet the point system, so that CRS would not accept him for rehabilitation training, and also said that the job club could not find a job for him because he needed training. He said the same thing happened with a second job club. As far as Centrelink was concerned, he said he was told that he was off work “on certificates”, and did not need to “put down (his) job seeking efforts” (transcript 29.9.04, at page 26, line 39). He said further that later Centrelink explained that their system had been changed, and so he returned to CRS. However, he said a CRS officer told him he would be wasting his time and they wanted him to get his Tribunal case out of the way and to come back after that.
25. In cross-examination, Mr Pelgrave admitted that he would have gone to Status Employment Services in about 1998 or 1999. He said he went there three or four times over a period of about six weeks, and spent an hour there on each occasion. He acknowledged that he had not participated in the Work for the Dole scheme. He also admitted that in the 2002 proceedings he had said, in February 2002, that he had not applied for any clerical-type jobs in the previous years, and that he had not applied for any clerical-type jobs since then. He said that he has prepared a CV, but does not send it out to anyone, and has not applied for any jobs, whether clerical-type or otherwise, since February 2002. Further, he had not rung anyone up to ask about jobs. He said that none of the jobs he had seen in the papers or at the screens at Centrelink were suited to him because of lack of skills, or were such that he was physically not capable of doing them.
26. Mr Pelgrave also admitted in cross-examination that he had not applied to do any TAFE courses, and that he had not looked at a TAFE program for a couple of years even though he understood that clerical or administrative-type courses would be suitable for him. He said he had only used a computer perhaps three or four times over the last three to five years, and that was to look up Comcare cases on the site, which a friend showed him how to do. However, that was the extent of his experience with using a computer. He further admitted that he had not offered to do any volunteer work, and had not undertaken any work experience. He said he has asked numerous people whom he had met about whether there were any possibilities of employment, but without success. Mr Pelgrave further explained his position in the following passage (transcript, 29.9.04, at page 34, line 27):
“Well, I need training. I thought that’s what it’s all about. I need training into an area. I don’t expect it to be handed to me “on a platter” as you’ve put it, you know, I expect to – to go do some appropriate courses when someone can point me in the direction as to, as to what sort of employment I can pursue, but without re-training or rehab it, you know, what road do you want me to go down?”
He was then asked by counsel for Comcare:
“That is a convenient excuse for you isn’t it Mr Pelgrave to say: because no-one is giving me any training I can’t get any work so really it is all their fault?”
and he replied:
“No, it’s not all, all their fault because someone hasn’t given me training. I’ve been trying to get re-training.”
27. Mr Pelgrave also admitted that he had not looked in the Commonwealth Gazette for jobs that were available, and he did not know that there was a Commonwealth Gazette. He said he had seen numerous Commonwealth jobs advertised in The Advertiser but had not considered applying for any of them because he did not have the necessary skills. He said he had seen some advertisements which said that on-the-job training would be provided, but he had never seen any that were suitable for him because he did not have the basic-type skills to get started.
28. In answer to further cross-examination regarding specific positions, Mr Pelgrave admitted that he thought he would be able to carry out the following jobs:
·administrative officer in the Courts, entailing assisting and providing directions to people attending court and looking after courtroom proceedings; and
·delivering mail within an organisation using a mail trolley.
He further admitted that he thought that if one were to disregard a chronic back condition (which was not, however, a compensable condition) he would be able to work at a reception desk for the Department of Defence, issuing security passes. He said he was asked whether he would be able to do a job as an ordering clerk in the Department of Defence entailing ordering supplies, processing invoices for payment and liaising with suppliers and customers, and said he was unsure about this.
29. Further cross-examination related to possible opportunities for Mr Pelgrave to work at Qantas. A company called Qantas Airways Limited acquired Australian Airlines in 1992, and I will refer to the former company in these reasons as “Qantas”. Mr Pelgrave admitted in cross-examination that Qantas still had staff at Adelaide Airport who work at the check-in counter, at service desks or at the gate before passengers board planes, and staff who direct people who have embarked from planes to the appropriate gate, and attend to lost baggage claims. He further admitted that apart from making more general requests for rehabilitation to gain employment with Qantas, he had not made a written application to Qantas to undertake any of those sorts of positions.
Evidence as to applicant’s requests that Qantas should make an assessment of his capacity to undertake a rehabilitation program
30. There was an issue between the parties as to the relevance and weight to be attached to certain requests made by Mr Pelgrave for Qantas to make an assessment of his capacity to undertake a rehabilitation program. In view of this issue, I will set out in some detail the evidence before me as to the requests made by or on behalf of Mr Pelgrave, and the outcome of those requests. A copy of the relevant correspondence was tendered by Mr Pelgrave and is included in exhibit A9.
31. Mr Pelgrave gave evidence that in 1994 he wrote to Comcare seeking an assessment to undergo rehabilitation. This letter was not produced in the proceedings before me, but a response from Comcare dated 6 May 1994 is included in exhibit A9. This response refers to a letter from Mr Pelgrave of 19 April 1994, and advises that pursuant to s 36 of the 1988 Act, the request should be made to the relevant rehabilitation authority, namely Qantas. The response from Comcare further advised that they had forwarded a copy of Mr Pelgrave’s letter to Qantas for their information, but suggested that Mr Pelgrave should formally apply direct to Qantas if he wished to pursue the matter.
32. No doubt as a result of this letter from Comcare, Mr Pelgrave then wrote a letter dated 1 June 1994 to Qantas in which he referred to his claim for compensation, and continued:
“I request that assessment be arranged with a view to assessing my capability to undertake a Rehabilitation programme.
I suffer from a permanent impairment to my left wrist (for which I have received compensation) and I find that on account of my impairment I am finding it impossible to find suitable employment without being rehabilitated or retrained.
I would appreciate hearing from you within 21 days.”
33. Mr Pelgrave gave evidence that he did not receive a reply to this letter, and I have no reason not to accept this evidence. He also said that he had made two other similar requests in writing to Qantas at about the time of the above correspondence. However, he was unable to produce a copy of any such other letters, and I am not satisfied that his recollection as to this aspect is correct.
34. I referred in paragraph 5 above to the further claim for compensation made by Mr Pelgrave’s solicitors on 23 May 2000. They wrote letters of that date to Qantas and Comcare Australia. In their letter to Qantas, Mr Pelgrave’s solicitors recounted the background to the claim and his then situation, and continued:
“Mr Pelgrave has, as a result of his injury, been unable to find or perform suitable work for some considerable time. Mr Pelgrave is willing to carry out any duties which are within his physical capacity and for which he is equipped by training and education. He is willing to undergo any appropriate re-training in order to obtain suitable work.
Are you able to provide Mr Pelgrave with any work which may be within his physical capacity?
If any further information is required, please do not hesitate to contact the writer or Mr Pelgrave directly.
We look forward to hearing from you.”
35. In their letter of 23 May 2000 to Comcare Australia, after again recounting the background to his claim and his then position, Mr Pelgrave’s solicitors said:
“We have recently written to the employee authority, Qantas, requesting that it undertake an assessment of Mr Pelgrave’s capacity to undertake a rehabilitation program. In the event that he is assessed as being so capable, we have requested that a rehabilitation program be made available to him.
By separate correspondence, we have requested that suitable employment be made available to Mr Pelgrave. Mr Pelgrave is willing to undertake and complete a rehabilitation program. We request that you assist in taking all reasonable steps to make available to Mr Pelgrave suitable employment or to assist him in finding such employment.
If Qantas assesses that Mr Pelgrave has no capacity to undertake a rehabilitation program or if Mr Pelgrave undertakes such a program, Mr Pelgrave should be entitled to receive weekly payments of compensation according to section 19 of the Safety Rehabilitation & Compensation Act 1988.
We ask that you make such enquiries and take such steps as are reasonable in your circumstances to make weekly compensation payments to Mr Pelgrave in respect of his incapacity for work.”
36. On 23 May 2000, Mr Pelgrave’s solicitors wrote to the AGS in the following terms:
“We refer to discussions at the Administrative Appeals Tribunal on 12 May and enclose copies of letters sent on behalf of our client to Qantas and to Comcare in which our client has sought to be assessed for a rehabilitation program in support of his claim for weekly payments of compensation. No doubt, you will advise the employer and Comcare to act promptly in relation to the matter.
It appears that no action has been taken previously in respect of the request made as long ago as 1 June 1994 for Mr Pelgrave to be assessed for a rehabilitation program.”
37. The AGS apparently responded to this letter on 1 August 2000. A copy of the response is not before me, but exhibit A9 includes a further letter from Mr Pelgrave’s solicitors dated 2 August 2000 referring to this response. The solicitors’ letter confirms that copies of the two earlier letters of 23 May 2000 had been sent to the AGS out of courtesy “and to ensure that the response on behalf of Comcare was coordinated”. The letter then asks the AGS to advise of Qantas’ attitude to the request in the letter of 23 May 2000 to establish a rehabilitation program and to make available to Mr Pelgrave work within his physical capacity.
38. Almost a year later, by letter dated 26 June 2001, Mr Pelgrave’s solicitors wrote to the Commonwealth Ombudsman to say that there had been no response to the earlier requests to Qantas on 1 June 1994 and 23 May 2000 to make an assessment of his ability to undertake a rehabilitation program, and asked the Ombudsman to investigate the matter. On the same date Mr Pelgrave’s solicitors also wrote to the Human Resources Manager of Qantas referring to their earlier letter of 23 May 2000, and to the earlier request of 1 June 1994, and enclosed further copies of these letters. The letter said that it appeared that the requests in those letters had been ignored or overlooked, and advised Qantas that the Ombudsman had been approached to investigate the matter, and also said:
“If it is the decision of QANTAS not to make any assessment in accordance with section of the (sic) 36 of the Safety Rehabilitation & Compensation Act 1988, then I urge you to do so. The matter can then be ventilated in the appropriate manner before the Administrative Appeals Tribunal.”
39. The Commonwealth Ombudsman subsequently replied that because Qantas was not a prescribed authority there could not be a complaint which the Ombudsman had power to investigate under the Ombudsman Act 1976. Following that, on 13 July 2001, Mr Pelgrave’s solicitors again wrote to the AGS and provided to the AGS a copy of the Ombudsman’s response. The letter to the AGS then continued:
“I draw to your client’s attention the lack of response from Qantas to my request for an assessment of my client’s capacity to undergo rehabilitation. Your client is of course responsible for the over all operation of Commonwealth employees’ compensation and is ultimately responsible for the payment of compensation. If it chooses to ignore my client’s request for assessment for rehabilitation and indeed for rehabilitation itself, that is a matter for the Tribunal to consider in determining whether Mr Pelgrave is entitled to weekly payments.
Your client can hardly criticize Mr Pelgrave for a negative attitude to suitable employment if it steadfastly refuses to consider his request for rehabilitation or continually ignores it. I reiterate that my client wishes to be assessed for the purposes of determining his suitability to undergo rehabilitation. I invite your client Comcare to carry out that assessment on behalf of Qantas.”
40. The AGS replied to the letter referred to in the preceding paragraph on 25 July 2001, and said that in their view, the issue of rehabilitation had no direct significance to the current Tribunal proceedings. The letter then continued:
“3. As you are well aware, the Act provides that Qantas is your client’s rehabilitation authority. We do not act for Qantas. However, we note that your client was offered rehabilitation by Qantas in 1989 which he unreasonably refused. In the intervening 12 year period it appears that your client has contacted Qantas only twice, in 1994 and 2000, in relation to rehabilitation. This seems hardly indicative of his attitude to rehabilitation being a ‘very significant matter’. The correspondence from your client to Qantas does not appear to have been followed up by your client and no attempt appears to have been made by your client to ensure that the requests have been received by the appropriate area of Qantas.
4. Given your client’s concern about rehabilitation Comcare has contacted Qantas. We are advised that the relevant area has no record of any request for rehabilitation from your client. This could have been easily ascertained had contact been made by your client with Qantas by telephone. We are advised that the appropriate person to address your client’s rehabilitation requests to is: Ms Heechung Sung (and her title, address and telephone number were provided) …
5. We have referred your recent correspondence to Ms Sung for the rehabilitation issue to be considered by Qantas.
6. We note that should your client be unsatisfied with Qantas’ response to his request for rehabilitation there is a (sic) opportunity pursuant to section 38 of the Act for him to request reconsideration of any determination by Qantas under section 36 or section 37 of the Act.”-
41. Mr Pelgrave’s solicitors responded to this letter on 27 July 2001 joining issue with the views expressed by the AGS as to the relevance of rehabilitation, expressing their “puzzlement” at Qantas’ failure to take steps as requested in the earlier letters, and advising that they had contacted Ms Sung to reiterate their request. The letter also asserted that until Qantas had responded to the request for rehabilitation there was no reviewable decision, and in the light of the Ombudsman’s response there was no obvious process whereby Mr Pelgrave could force Qantas to respond.
42. On the same date, 27 July 2001, Mr Pelgrave’s solicitors wrote to Ms Sung of Qantas enclosing copies of the letters to Qantas of 23 May 2000, 26 June 2001 and 1 June 1994, and requested her to assess Mr Pelgrave’s capacity for rehabilitation and to advise them of Qantas’ attitude. The documents before me do not include any further information as to the outcome of the letter to Ms Sung dated 27 July 2001. I accordingly conclude that Qantas did not respond to the further request contained in that letter.
Further evidence and documentary material
43. In an endeavour to expedite the re-hearing of this matter, the parties tendered by consent the transcript of the 2002 proceedings. It was agreed that this was a correct transcript. Counsel for Mr Pelgrave, Mr A Martin, also tendered certain exhibits from the earlier proceedings, including the parties’ Statements of Facts, Issues and Contentions. He also tendered the T-Documents in the 1993 proceedings. Finally, he tendered a schedule summarising the minimum award wages applicable in South Australia with effect from 1 August 1998, together with a copy of the decisions fixing the relevant amounts as from the operative date referred to in each such decision.
44. Mr B Dubé, who appeared as counsel for Comcare, called Kerry Francis Rickards. Mr Rickards gave brief evidence in relation to the prospects of Mr Pelgrave receiving an offer of employment from Australian Airlines if he had completed a Passenger Service Officer course which, he said, Mr Pelgrave had been given the opportunity to undertake in 1989. I will refer in detail to Mr Rickards’ evidence later in these reasons, when I consider the significance of this issue.
45. In addition to the vocational assessment report from Personnel Placement Consultancies, counsel for Comcare also tendered the following further documents:
(a)information provided by Qantas as to the earnings which Mr Pelgrave would have received with Qantas during various periods from and after 31 July 1989 (exhibits R5 and R6); and
(b)a table of employment opportunities for which, in the opinion of the AGS, Mr Pelgrave may have been qualified to apply (exhibit R7). This table was created by an AGS lawyer from the Commonwealth Government Gazette from February 2002 to 24 September 2003, and the exhibit includes copies of the pages of the Gazette referred to in the table. A copy of the table of employment opportunities was provided to Mr Pelgrave’s solicitors on 10 November 2003.
Legislation
46. The 1988 Act, pursuant to which Mr Pelgrave has claimed compensation, did not come into force until 1 December 1988, but his injury occurred before this, on 2 May 1987. It is therefore necessary to consider the transitional provisions in Part X of the 1988 Act. Section 124(1) provides, in effect, that subject to Part X, that Act applies in relation to an injury suffered by an employee, whether before or after the commencing day. Section 124(1A) then provides in effect that, subject once again to Part X, a person is entitled to compensation under the 1988 Act in respect of an injury suffered before the commencing day if compensation was, or would have been, payable to that person in respect of that injury under (relevantly) the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the “1971 Act”). It is therefore necessary to consider whether Mr Pelgrave was entitled to compensation under the 1971 Act.
47. The 1971 Act applied to and in relation to employees of the Commonwealth or of a prescribed authority of the Commonwealth (s 7(1) of the 1971 Act). If personal injury arising out of or in the course of the employment of such an employee was caused to the employee, the Commonwealth was liable to pay compensation in respect of that injury in accordance with the 1971 Act (s 27(1)). Under s 46 of the 1971 Act, where an injury to an employee resulted in the employee being partially incapacitated for work, compensation was payable to the employee, during the period of incapacity, and s 46(2) provided how the amount of compensation was calculated.
48. In Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665, the Tribunal decided that by virtue of s 124 of the 1988 Act, entitlement to compensation in respect to pre-existing injuries (i.e. existing before 1 December 1988) is to be ascertained according to the entitlement provisions of the predecessor Act which was in force at the time when the relevant injury, loss or damage was suffered. However, as regards the amount of compensation payable, the decision-maker should refer to the 1971 Act to ascertain how much the employee was entitled to up until 30 November 1988, but after that, the amount of compensation is to be calculated by reference to the 1988 Act. I refer also to Re Scibberas and Commonwealth of Australia (1991) 24 ALD 224a at 227.6, which followed the approach enunciated in Re Willis in a decision relating to partial incapacity for work, and to Brennan v Comcare (1994) 50 FCR 555 at 562, where after referring to the provisions of Part X of the 1988 Act, Gummow J said:
“The provisions are transitional in a particular way. They are not concerned with the preservation of the old legislation in respect of rights and liabilities accrued thereunder. Rather, they deal with the creation and substitution from the commencement of new rights in respect of past events.”
In the present matter, it was common ground that Mr Pelgrave was partially incapacitated for work, and that Comcare’s liability to pay compensation was to be determined by reference to s 19 of the 1988 Act.
49. Section 19 of the 1988 Act relevantly provides as follows:
“(1)This section applies to an employee who is incapacitated for work as a result of an injury …
(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:
NWE - AE
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.
…
(3)Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
(Adjustment percentage x NWE) – AE
where:
adjustment percentage is a percentage equal to:
(a)if the employee is not employed during that week - 75%; or
…
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee's normal weekly earnings.
…
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self-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.”
50. The expression “suitable employment”, which needs to be determined in order to quantify the acronym “AE” in the formula in s 19(2), is defined in s 4(1) of the 1988 Act (unless the contrary intention appears) as follows:
“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).”
51. Under s 36 of the 1988 Act, where an employee suffers an injury resulting in incapacity for work, the rehabilitation authority may at any time, and must on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program. The employee may be required to undergo an examination so that an assessment can be provided to the rehabilitation authority of the employee’s capability of undertaking a rehabilitation program, specifying the kind of program which he or she is capable of undertaking (s 36(4) and (8)). Under s 37 of the 1988 Act, a rehabilitation authority has a discretion to make a determination that an employee who has suffered an injury resulting in an incapacity for work should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
Consideration
52. I found Mr Pelgrave to be an intelligent and articulate witness. He was defensive in answering questions from counsel for Comcare, and displayed an attitude of some hostility towards his former employer. Nevertheless, on the whole I found his evidence satisfactory and I accept it, subject to specific matters to which I will refer below.
Suitable Employment
53. In calculating the amount of compensation for which Comcare is liable under s 19(2), it is appropriate first to identify what would constitute suitable employment in Mr Pelgrave’s case. Counsel on both sides proceeded on the basis that this meant employment with the Commonwealth and with Qantas, as the successor to Australian Airlines. I had some concerns as to whether this was a correct analysis of Mr Pelgrave’s position, because as at the date of Mr Pelgrave’s injury, he was employed by the Australian National Airlines Commission (which at that time traded under the name “Trans Australia Airlines” or “TAA”). Later, this Commission was converted to a public company and its name was changed to Australian Airlines Limited, by virtue of the Australian Airlines (Conversion to Public Company) Act 1988. By a regulation under the 1971 Act which came into effect from 30 April 1988, the Commission had been declared to be a prescribed authority of the Commonwealth under s 5(1) of the 1971 Act. However, it was not apparent that Australian Airlines was either the Commonwealth or a licensed corporation within the meaning of s 4(1) of the 1988 Act. In order to arrive at the correct or preferable decision, this Tribunal has an inquisitorial function (see the authorities cited in Pelgrave v Comcare (supra) at [14], Hendy v Repatriation Commission (2002) 72 ALD 112 at [53] and the authorities there cited, and Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47]. In view of the importance of this issue to the meaning of “suitable employment”, and to the determination of who is the rehabilitation authority for the purposes of s 36 of the 1988 Act, I raised this issue with both parties after the hearing.
54. It appears from further submissions from Comcare, dated respectively 10 and 15 February 2005, that on 30 November 1988 Australian Airlines Limited (the successor of the Commission) was declared to be a Commonwealth authority for the purposes of par (c) of the interpretation of “Commonwealth authority” in s 4(1) of the 1988 Act. Section 4(1) provides that “Commonwealth, in relation to persons employed by a Commonwealth authority, has the additional meaning given in subsection 5(7)” (emphasis added). Section 5(7) of the 1988 Act provides in effect that for the purposes of the application of the Act in relation to a person employed by a Commonwealth authority, references in the Act to the Commonwealth shall be read as references to that authority. Section 27 of the Qantas Sale Act 1992 provides in effect that the 1988 Act continued to apply in relation to an injury or property damage occurring to employees of Australian Airlines as if it had continued to be a Commonwealth authority. Mr Pelgrave was a permanent employee of Australian Airlines at the time of his injury, and did not terminate his employment. Accordingly, (as I understand Comcare’s submission) under s (4)(1), “suitable employment” meant employment by the Commonwealth and Qantas, because by virtue of the definition in s 4(1) the meaning of the Commonwealth was extended to a Commonwealth authority, and Qantas is the successor to Australian Airlines.
55. At a resumed hearing on 7 March 2005, counsel for Comcare advised that as a result of further investigations, it appeared that Australian Airlines Limited had changed its name to AAL Aviation Limited and was wholly owned by Qantas Airways Limited. That information is confirmed by a search of AAL Limited (exhibit R8). Counsel also said that it appeared from his inquiries that AAL Limited was a dormant subsidiary of Qantas. In the light of this further information, and notwithstanding the analysis set forth in paragraph 54, I remain unconvinced that “suitable employment” extends to Qantas in this case, since it has not been suggested that Qantas (as opposed to Australian Airlines) has ever been declared to be a Commonwealth authority, and it is not a licensed corporation. I consider that in the circumstances of this matter, “suitable employment” means employment by the Commonwealth and (under the extended meaning of “Commonwealth”) by AAL Limited. However, as that company has apparently ceased to operate any business, the rights in favour of Mr Pelgrave preserved by the Qantas Sale Act are, from a practical point of view, illusory. In the events that happened, the legislation preserving the rights of former employees of Australian Airlines should, I think, have extended to entities taking over the business activities of Australian Airlines, as well as to Australian Airlines itself. Nevertheless, the proceedings were conducted on the basis that suitable employment means employment by the Commonwealth and by Qantas, and it is apparent from s 27 of the Qantas Sale Act 1992 and from the second reading speech which preceded its enactment that the Government intended that employees’ entitlements and benefits should be preserved following the sale of Qantas. Further, Qantas itself is continuing to operate the domestic airline business previously carried on by Australian Airlines, and this appears to be distinct from its international operations. It provides employment to many people in its domestic operations. I also note that Comcare advised Mr Pelgrave to make his request for a rehabilitation assessment to Qantas. These matters are, I think, relevant to the application of s 19(4) of the 1988 Act in this matter, for reasons to which I will refer below.
56. In considering what constitutes “suitable employment”, it is also necessary to have regard to subparagraphs (i), (ii), (iii) and (iv) of paragraph (a) of the definition, which are incorporated by reference in paragraph (b) of the definition of “suitable employment”. I have referred above to matters relevant to subparagraphs (i) and (ii). The matters referred to in these paragraphs were canvassed in the report from Personnel Placement Consultancies Pty Ltd (exhibit R4). Mr Pelgrave acknowledged that he could have undertaken the two jobs referred to in paragraph 28 above. I also find that the security officer job was suitable employment, because I should disregard any inability to do this job because of a non-compensable condition. These three positions were with the Commonwealth.
57. Counsel for Comcare drew my attention to a number of other positions with the Commonwealth in exhibit R7. However, Mr Pelgrave was not asked in cross-examination whether he would be able to do the work entailed in these positions, and the description of the positions in exhibit R7 does not give a clear indication in many instances of the skills required or the duties entailed. To the extent that the relevant skills or duties can be deduced from R7, it appears to me that a number of the positions would not, in any event, have fitted within the description of Mr Pelgrave’s capacity for employment as assessed by Personnel Placement Consultancies Pty Ltd. I am not satisfied that these further positions constituted work for which Mr Pelgrave was suited, having regard to the matters referred to in subparagraphs (i) and (ii) of the definition in s 4(1) of suitable employment.
58. The report from Personnel Placement Consultancies Pty Ltd referred to various other jobs. The information in the report relating to the job of a car-park attendant did not suggest that there was a current vacancy with a specific employer, but merely incorporated a description of the duties entailed, the requirements for the position and the rates of pay with various car-park groups. I do not think that Mr Pelgrave should reasonably have been expected to take up the position at Centrelink, as this was at Mount Gambier, and was a part-time temporary position involving only two hours work per day on week days. With the exception of the car-park attendant and Centrelink position, however, the remaining positions would, I think, meet the requirements of subparagraphs (i) and (ii), but they were not “suitable employment”, because they were not positions with the Commonwealth (or Qantas, if this is relevant).
59. There was no evidence that suitable employment was available to Mr Pelgrave in a place that would require him to change his place of residence. Accordingly, no issue arises under subparagraph (iii) of the definition of “suitable employment”.
60. In considering subparagraph (iv) of the definition, I take into account the restrictions on Mr Pelgrave’s capacity for employment in consequence of his wrist injury. This incapacity was summarised by Dr Long, and I quoted his opinion in paragraph 20 above. I note that Personnel Placement Consultancies Pty Ltd also referred to Dr Long’s opinion, and they took this into account in reaching their conclusions. There is some reference to a shoulder injury in the medical reports, but Mr Pelgrave has not pursued a claim for compensation in respect of this, and in any event it appears from his evidence before me and from exhibit A12 that he has substantially recovered from his shoulder pain, and that his wrist is his main source of incapacity.
61. Mr Pelgrave’s employment history is that the only work he has undertaken has been manual work. Following his wrist injury in 1987, I find on the evidence before me, including the report from Personnel Placement Consultancies Pty Ltd, that the jobs for which he is now suited comprise unskilled, practical type functions with limited administration or clerical skills, and a relatively low level of education. I further find that he has some limited ability to undertake specific training to equip himself for some clerical or administrative type work. Based on the evidence of Mr Rickards, I further find that employment with Qantas as a reservations officer, a check-in officer, a ticketing officer or in incidental passenger service positions would satisfy paras (i) to (iv) of the definition of suitable employment, subject however to Mr Pelgrave successfully completing the necessary training for these positions. I further find that jobs such as an administrative officer in the Courts, a mail clerk, a security officer (working at a reception desk and issuing security passes and with other incidental duties), a courier driver, a car-park attendant or a retail sales assistant in employment with the Commonwealth (or on the parties’ agreed position, with Qantas) would constitute suitable employment for Mr Pelgrave.
Application of s 19(4) of the 1988 Act
62. Section 19(4) of the 1988 Act requires Comcare, and this Tribunal standing in the shoes of Comcare, to have regard to a number of matters when calculating the amount the relevant employee is able to earn in suitable employment. The expression “have regard to” requires me to take the relevant matters into account and give weight to them: Queensland Medical Laboratory & Ors v Blewitt & Ors (1988) 16 ALD 440 at page 447. There was no evidence that paragraphs (a), (c) or (d) of s 19(4) are relevant to the present proceedings. I will consider the remaining paragraphs of s 19(4) in turn. In considering the relevant criteria set out in s 19(4), I am mindful that even if I find that a particular paragraph applies to Mr Pelgrave, that would not necessarily lead to a finding as to the amount Mr Pelgrave is able to earn in suitable employment: Woodbridge v Comcare (1994) 20 AAR 196. Neither party has sought to place further material before me as to any relevant events occurring between the date of the hearing and the date of this decision, and I will therefore assume that the situation as at the conclusion of the hearing has obtained until now.
Did the applicant receive an offer of suitable employment and fail to accept that offer? (Section 19(4)(b) of the 1988 Act)
63. As mentioned in paragraph 12 above, when the remitter was first listed for hearing on 13 November 2003, counsel for Mr Pelgrave said in the course of his opening that Mr Pelgrave disputed that he had been offered a position as a ticketing officer with Australian Airlines. As also mentioned in that paragraph, I formed the view in the course of subsequent directions hearings that there were certain potential ambiguities in the findings made in the 1993 decision. In considering the relevance of this issue, I am mindful that if an offer of employment is made but not accepted and the employee concerned is then dismissed, the dismissal does not negate the offer: Riley v Comcare (1994) 121 ALR 477 and Re Pane-O’Neill and Comcare (1997) 49 ALD 340 at 348.
64. The findings in the 1993 decision relevant to the issue of whether an offer of a ticketing position had been made to Mr Pelgrave were as follows.
“The Tribunal is satisfied and so finds that on the medical evidence that the applicant should be able to work in an office situation such as in the ticketing division which would seem to be a more appropriate work alternative for him. Furthermore, the Tribunal is satisfied that such an offer was made by the airline.”
Later in the same paragraph of its decision the Tribunal then made the following finding, which suggests that Mr Pelgrave had merely been offered a training course:
“The applicant was clearly offered the ticketing course in an attempt to gain suitable work … The Tribunal notes that even though the prospects of a job being available in the ticketing division at the conclusion of the course were remote, and in particular the fact of a staff freeze existing, it nevertheless appears that the applicant’s reasons for refusing to undertake the course were unreasonable.”
The Tribunal then made the following further finding, which also suggests that no offer of suitable employment had been made to Mr Pelgrave, and he had merely been offered a ticketing course by way of rehabilitation.
“The Tribunal is satisfied that the airline made every effort to offer the applicant suitable employment, and in this case to undertake by way of rehabilitation a ticketing course, and that his refusal to undertake this was unreasonable.” (emphasis added). (1993 decision at [92]).
65. It is apparent from the T-Documents in the 1993 proceedings (exhibit A14) that Comcare had consistently maintained that Mr Pelgrave had been offered a ticketing position by Australian Airlines prior to Mr Pelgrave’s compensation payments being terminated in 1989 (see, for example, exhibit A14, being the T-Documents in the 1993 proceedings, T59, page 98 and T76, page 129). Comcare continued to maintain this position following the interlocutory hearings in 2004, as appears from Comcare’s amended reply to the applicant’s Amended Statement of Facts and Contentions. In this amended reply, the respondent asserts that “(s)everal offers of suitable employment were made to the applicant, including the ticketing officer’s position and employment in cabin services and the catering section”.
66. In Mr Rickards’ evidence before me, he confirmed the correctness of the evidence he had given in the 2002 proceedings, and a copy of this evidence was tendered as exhibit R2. Neither Mr Rickards’ evidence in the earlier proceedings nor his evidence in the present proceedings establishes that Australian Airlines had offered Mr Pelgrave a ticketing officer’s position. On the contrary, his evidence suggests, and I find, that Australian Airlines was not in a position to offer such a position to Mr Pelgrave. I further find that this had been made clear to Comcare as long ago as 15 January 1991. In a letter of that date to Comcare, Australian Airlines said, in part:
“A position was not available at that particular time, however, our intention was to accommodate Mr Pelgrave upon the satisfactory completion of his training programme in a position in our Passenger Services Department should a vacancy occur. … Australian Airlines evaluates each rehabilitation claim and only offers modified employment opportunities to employees when they are available. If a position is unavailable (as has been the case with other claims) no offer is made to employees.” (emphasis added; see exhibit A14, T83, page 140).
67. In his evidence in the present proceedings, Mr Rickards did, however, clarify the reference in the 2002 decision to the staff freeze. He said that this did not mean that no vacant positions were able to be refilled; rather, it was necessary to establish that there was a case for refilling the position. He further said that if Mr Pelgrave had done the relevant training and a position became available, he would have been able to be “considered” for that position (exhibit R3, par 4.2). He further explained that the course of training which had been offered to Mr Pelgrave was not confined to training as a ticketing officer, but was part of training as a Passenger Services Officer. This entailed a series of modules, and after each module was completed an assessment was made of the trainee’s progress and suitability to proceed to the next module. Depending on the trainee’s progression, the areas of employment potentially available would be to work as a reservations officer (that is, making and modifying passenger bookings), a check-in officer, entailing receiving incoming passengers, issuing seat allocations and checking in baggage, and a ticketing officer, entailing placing passengers within an aircraft having regard to load control considerations in order to ensure that the aircraft was balanced. Mr Rickards further explained the kinds of duties carried out by passenger services officers, both on the concourse of an airport, within the terminal and in the Qantas Club.
68. In the 1993 decision, the Tribunal did not advert to the above letter of 15 January 1991. On all of the evidence before me, I find that Australian Airlines made a bona fide offer of rehabilitation entailing Mr Pelgrave undertaking the Passenger Service Officer training course. I further find that Australian Airlines would have made genuine efforts to find a suitable position in the Passenger Service Department for Mr Pelgrave, depending however on the degree of his success in undertaking the training modules. I further find that having regard to the above evidence as to the nature of the staff training freeze, the prospects of a job being available were not remote, as the Tribunal had found in 1993. Nevertheless, Mr Pelgrave certainly could not have been assured that a job would be found for him, and Mr Rickards had made this clear when discussing the training course with him.
69. As to the staff freeze, I note that in the T-Documents in the 1993 proceedings, Australian Airlines advised Comcare in March 1991 that according to their personnel records, “five vacancies became vacant within the 12-month period surrounding the above offer” (that is the offer of the training program in computerised check-in and reservations in the Passenger Services Department) (exhibit A14, T86, page 143). However, this letter does not indicate where in Australia the vacancies arose, and does not indicate whether the vacancies were for reservation officers, check-in officers or ticketing officers.
70. In the 1993 decision, the Tribunal referred, at [75], to Mr Pelgrave having been offered work in the catering section of Australian Airlines stacking dirty dishes in the kitchen area for eight hours a day. According to the Tribunal’s reasons for decision, Mr Pelgrave was a “bit shell shocked” at this offer and said that it was “hardly meaningful and hardly seems appropriate due to injury to be able to do that sort of work” (1993 decision, at [75]). The Tribunal further recorded at [75] that according to Mr Rickards, there was no vacancy in the catering centre, that there had been a staff ceiling freeze for some time, and that Mr Hayes, an orthopaedic surgeon who had given evidence and provided reports to Mr Pelgrave’s solicitors, did not believe that stacking dishes would be appropriate work as this would cause discomfort in the wrist. On the material before me, I am not satisfied that this work was suitable work for Mr Pelgrave.
71. In his final address, counsel for Comcare accepted the finding in the 1993 decision that the position of a flight attendant was not suitable employment because of Mr Pelgrave’s medical restrictions (transcript 30.9.04, page 38, line 6).
72. For all of the above reasons, I find that Mr Pelgrave was not offered suitable employment by Qantas.
Has Mr Pelgrave failed to seek suitable employment? (Section 19(4)(e) of the 1988 Act)
73. Mr Pelgrave through his solicitors tried to obtain a rehabilitation assessment as well as suitable employment with Qantas. I set out in detail in paragraphs 30 to 42 above the chain of correspondence commencing with the letters of 23 May 2000, and ending with the letter to Qantas of 27 July 2001. I do not agree that this correspondence should be regarded as merely an attempt to reinforce Mr Pelgrave’s claim for compensation, as was suggested by Comcare’s counsel. Comcare should not have interpreted the correspondence that way, if that is what it did. Mr Pelgrave’s solicitors went as far as to ask the Ombudsman to investigate the matter when they could not obtain a response from Qantas. On the parties’ agreed position that employment with Qantas was suitable employment under s 4(1) of the 1988 Act, then by virtue of s 36, Qantas was under an obligation to make an assessment of Mr Pelgrave’s capability of undertaking a rehabilitation program, as he had requested. It has been held that the obligation to make a rehabilitation assessment extends to former employees (see Re Gaffney and Australian Postal Corporation (1994) AATA 9924, 22 December 1994, and the extended meaning given to a reference to employee provided for in s 5(9) of the 1988 Act). Qantas did not comply with Mr Pelgrave’s requests, even though it appears that both parties assumed that the chief executive officer of Qantas was the rehabilitation authority.
74. Taking into account all of the evidence before me, I find that Mr Pelgrave sought employment with Qantas through his solicitors’ letters on 23 May 2000. This request was repeated in his solicitors’ letter of 1 August 2000 to the AGS. Later correspondence referred only to the requests for Qantas to consider providing a rehabilitation program, but the earlier correspondence, which included a request for suitable employment, was enclosed with some of the later letters. Further, the point of the requests in the later letters was to secure Qantas’ approval to providing a rehabilitation program, so as to put Mr Pelgrave in a position where he would be able to obtain employment with Qantas. This was implicit in those requests. I would add that the fact that the AGS was acting for Comcare and not Qantas did not negate the relevance of the requests. Comcare’s functions include promoting the adoption of effective strategies and procedures for the rehabilitation of injured workers (s 69(da) of the 1988 Act). This is consistent with the important place of rehabilitation in the overall scheme of the 1988 Act. I consider that the AGS or Comcare should have communicated the relevant requests to Qantas. The fact that Mr Pelgrave’s solicitors had involved the Ombudsman was even more reason for the AGS or Comcare to have advised Qantas of the requests.
75. I am mindful that the last request made of Qantas for rehabilitation occurred on 27 July 2001, which was more than three years before the date of the hearing. There is no evidence that Mr Pelgrave’s solicitors pursued the matter again after that. Ordinarily, inaction for such a long period might lead to a finding that the seeking of employment with Qantas was not genuine, or that it had elapsed a reasonable time after it had been ignored. However, it is necessary to bear in mind all of the facts surrounding the requests made of Qantas. By the time of the last request of Qantas, Mr Pelgrave and his solicitors had made some ten requests to Qantas, Comcare and the AGS for employment or for an assessment to be made of Mr Pelgrave’s capability to undertake a rehabilitation program. The first such request was made in 1994. Further, Australian Airlines had terminated Mr Pelgrave’s employment some years earlier again, in 1989. By 2001, he had proceeded with his claim for compensation under s 19. It was reasonable for him to have concluded that his dispute with Qantas, including the relevance of his requests for rehabilitation assessment, would have to be resolved by the determination of the application he had made to this Tribunal. He was not to know of the length of time that it would take before his application would be resolved. In these circumstances, I do not think that it could be said that Mr Pelgrave’s requests were not genuine, or that they had lapsed.
76. It is accepted by both parties that for Mr Pelgrave, “suitable employment” meant employment by the Commonwealth and Qantas. On this basis, or if regard is had to the commercial reality of the evolution of Mr Pelgrave’s former employer and not to legal niceties, it could be said that Mr Pelgrave genuinely sought suitable employment, namely employment with Qantas. I therefore conclude that s 19(4)(e) of the 1988 Act should not result in Mr Pelgrave’s potential earnings with Qantas being taken into account as from say 1 July 2000 to the date of this decision. The suggested commencing date of 1 July 2000 would allow Qantas a reasonable period after receiving the letter of 23 May 2000 in which to investigate possible employment positions which could have been provided to Mr Pelgrave.
77. It remains necessary to consider the period from the date when Mr Pelgrave was last employed, that is in about May 1998 until 30 June 2000. He made no attempt until the despatch of the solicitors’ letters of 23 May 2000 to obtain employment with Qantas. I have referred above to Mr Pelgrave’s evidence as to his attempts to find employment through the job clubs and through Centrelink, and by looking in the newspapers. I consider that Mr Pelgrave’s attempts to obtain employment (whether with the Commonwealth or in the general employment market) have been scant. Whilst for the reasons he explained, he was not able to obtain assistance through the job clubs, he has nevertheless not taken any initiatives himself to obtain training for any form of employment for which he might be capable. Further, he has not adequately investigated the possibility of applying for or obtaining employment where on-the-job training was available. He did not look in the Government Gazette for employment opportunities with the Commonwealth. In the circumstances, I find that during the above period Mr Pelgrave failed to seek suitable employment with the Commonwealth or (if this is relevant) with Qantas or in the general employment market.
78. I referred in paragraph 61 above to the limited field of employment for which Mr Pelgrave is suited. Counsel for Mr Pelgrave contended that it was open to me to use my general knowledge of employment conditions in South Australia to find that in seeking many such positions with the Commonwealth or (if this is relevant) in the general employment market, Mr Pelgrave would be competing with younger persons who either had higher educational qualifications than Mr Pelgrave as it is likely that they would have matriculated, or would have had work experience in such positions, including the use of computer technology. I think there is force in this submission, and that I can use my own knowledge of the labour market and the availability of employment: J & H Timbers Pty Ltd v Nelson (1971-1972) 126 CLR 625 at 651; Mechanical Advantage Group Pty Ltd v George (2003) NSWCCR 368 at [61]. However, there is no evidence as to the amount which Mr Pelgrave could reasonably be expected to earn in suitable employment if he had been engaged in such employment. I therefore do not have the necessary factual material before me to make the assessment required by s 19(4)(e) of the 1988 Act, or to quantify factor “AE” in the formula set out in s 19(2).
Was Mr Pelgrave’s failure to seek suitable employment reasonable? (Section 19(4)(f) of the 1988 Act)
79. I do not think, in all the circumstances, that Mr Pelgrave’s failure to seek employment with the Commonwealth (or Qantas) during the period from about May 1998 to 30 June 2000 can be regarded as reasonable. It is true that on Mr Pelgrave’s evidence, he had asked Comcare and then Qantas to make an assessment of his capability to undertake a rehabilitation program in 1994. However, he did not pursue the matter at all following his letter to Qantas of 1 June 1994. He did not follow the matter up again with Qantas until his solicitors wrote the letters of 23 May 2000. I think that Mr Pelgrave’s failure to follow the matter up over such a long period was not reasonable, especially as he had lengthy periods of unemployment during this period.
80. It is also necessary to take into account that during part of this earlier period of May 1988 to 30 June 2000, Mr Pelgrave was affected by an injury to his shoulder which appears from the medical evidence in exhibits A7, A8 and A12 to have at least been aggravated by the incident involving the use of the mattock at his home. It appears that he had also sustained some injury to his shoulder in the original work injury in 1987. However, as mentioned above, he has apparently never pursued a claim in respect of any shoulder injury. In these circumstances, I consider that this injury constituted a non-compensable injury and therefore is not to be taken into account in determining the amount he was able to earn in suitable employment under s 19(4) of the Act: Prica v Comcare (1996) 44 ALD 46. I therefore consider that (if this were to be asserted on his behalf) any incapacity from Mr Pelgrave’s shoulder could not be said to have made it reasonable for him not to have applied for suitable employment during this earlier period.
81. On my interpretation, “suitable employment” means, in Mr Pelgrave’s case, employment by the Commonwealth and by AAL Limited, but not by Qantas. On that interpretation, Mr Pelgrave’s requests to Qantas, commencing with his solicitors’ letters of 23 May 2000, did not amount to his having sought suitable employment within the meaning of s 19(4)(e) of the 1988 Act. However, Qantas was the successor in business of Australian Airlines, and Mr Pelgrave might reasonably have expected that Qantas would be able to provide employment to him. Further, both parties assumed that “suitable employment” extended to employment by Qantas, and that assumption continued throughout the conduct of the present proceedings. In the circumstances, I consider that on my strict interpretation of “suitable employment”, Mr Pelgrave’s conduct in making the relevant requests for employment to Qantas and Comcare was reasonable.
Are there any other relevant considerations? (Section 19(4)(g) of the 1988 Act)
82. Counsel for Comcare contended that I could take into account under this paragraph Mr Pelgrave’s failure to seek employment with the Commonwealth or in the general employment market, as well as his failure to seek training (including on-the-job training) to equip himself for employment within his physical capabilities. In support of this argument, counsel for Comcare referred to the decision of the Tribunal in Re Slater and Telstra [2002] AATA 597, where from the evidence before it, the Tribunal concluded that the applicant had shown no inclination to return to the workforce and had “sat on his hands waiting for the respondent to take initiative in complying with the requirements of the Act” (see [74]). However, in that case (unlike the present case) “suitable employment” under s 4(1) meant employment in the general labour market because the applicant was not a permanent employee of the Commonwealth, but was employed on a contract basis (see Telstra v Slater [2001] FCA 149 at [40]). In the present matter, I have already found that “suitable employment” is confined to employment with the Commonwealth and (according to the parties, with Qantas). In my opinion, the contention by counsel would contradict the effect of paragraph (a) of the definition of “suitable employment”, under which that concept is confined to employment either by the Commonwealth or by the relevant Commonwealth authority or licensed corporation. I accordingly reject this contention.
83. Counsel for Comcare drew my attention to the finding in the 1993 decision that Mr Pelgrave’s refusal to undertake a ticketing course by way of rehabilitation was unreasonable. He submitted that this constituted a relevant consideration, because Mr Pelgrave thereby removed himself from the possibility of obtaining employment with Australian Airlines (or its successor, Qantas). There is force in this submission. However, the matter did not rest there. Qantas terminated Mr Pelgrave’s employment. Later again, on 1 June 1994, Mr Pelgrave made a written request for Qantas to assess his capability to undertake a rehabilitation program but this request was apparently ignored. And from and after 23 May 2000 Mr Pelgrave’s solicitors made the further (and progressively more insistent) requests for suitable employment or for assessment of rehabilitation capacity to which I have referred above, but again these requests were ignored. I think that these further matters counter Mr Pelgrave’s unreasonable response many years earlier to Australian Airlines’ offer of rehabilitation.
84. I further consider that in the circumstances of this matter, Comcare’s continued incorrect assertion in its amended Statement of Facts and Contentions dated 28 May 2004 that several offers of suitable employment had been made to Mr Pelgrave is a further relevant factor. This assertion was not made in circumstances where conflicting witness statements had been obtained, so that the true facts could not be determined pending a Tribunal determination. On the contrary, the assertion was made with reference to the 1993 proceedings and the 1993 decision. The only addendum Comcare produced in the present proceedings to the evidence adduced in the 1993 proceedings was by way of clarification of the nature of the proposed training course and the staffing freeze at Australian Airlines in 1989. That evidence did not change the essence of the communications to Mr Pelgrave, and did not support an allegation that several offers of suitable employment had been made to him. That had never been the case. I find that this attitude by Comcare further excused Mr Pelgrave from persisting in his futile attempts to obtain employment with Qantas after July 2001.
85. It is of concern that Mr Pelgrave did not seek employment with the Commonwealth. However, having regard to the small number of jobs referred to in exhibit R7 which in my view would have constituted suitable employment for Mr Pelgrave, and having regard to his limited educational qualifications, I am not satisfied on the evidence that Mr Pelgrave would have been able to obtain suitable employment with the Commonwealth during the later period which I have identified. Further, he had registered with a job club, and had not been able to obtain assistance through the CRS.
86. If (contrary to the parties’ agreed position) “suitable employment” did not extend to Qantas, it was in my view nevertheless a relevant matter for the purposes of s 14(4)(g) that Mr Pelgrave sought employment and a rehabilitation assessment from Qantas. By the date when Mr Pelgrave made his later requests Australian Airlines (or AAL Limited, as it is now called) had ceased to operate any business. However, Qantas was its successor in business, and carried on the domestic airline business in which Mr Pelgrave had previously been employed. It was reasonable for him to have made the relevant requests to Qantas. Indeed, in 1993 and in later correspondence with his solicitors, Mr Pelgrave was advised by Comcare or its solicitors that the requests for rehabilitation assessment should be sent to Qantas. In any event, if (as is the case on my analysis) he has sought employment outside the confines of the fields of employment applicable in his case under the definition in s 4(1), this should count in his favour as a relevant consideration.
87. As regards the earlier period from May 1998 until 30 June 2000, it is relevant that Mr Pelgrave had suffered an injury to his wrist on 4 August 1998. In its 2002 decision, the Tribunal found (at [91] and [92]) that this constituted a fresh injury which occurred at a time when he was not an “employee of Qantas”, and the relevant incident did not occur during or in the course of his employment. The effect of this separate injury on Mr Pelgrave’s capacity to work is not clear from the evidence before me. If this injury was the sole cause of his incapacity to work during part of this earlier period, then that would constitute a further ground for disqualifying Mr Pelgrave from recovering under s 19 of the 1988 Act, on the grounds that it was a novus actus interveniens: Re Sadek and Commonwealth (1988) 14 ALD 769 at 771.
88. I do not think that in assessing the amount which Mr Pelgrave could earn in suitable employment in the earlier period from about May 1998 until 30 June 2000 any regard should be had to his potential earnings with Qantas. As mentioned above, in my view “suitable employment” does not extend to employment with Qantas in Mr Pelgrave’s case. But quite apart from that, Qantas disregarded Mr Pelgrave’s later requests, through his solicitors, to obtain employment, or even a rehabilitation assessment, from Qantas. There is no reason to think that Qantas’ response to any similar requests by Mr Pelgrave in the earlier period would have met with a different fate.
Conclusion
89. For all of the above reasons, I find that:
(a)during the period from about May 1998 to 30 June 2000, Mr Pelgrave was able to achieve earnings in suitable employment with the Commonwealth; and
(b)during the period from 1 July 2000 to date, Mr Pelgrave has been unable to earn any amount in suitable employment. It follows that he is entitled to weekly payments of compensation from that date until the date of this decision and continuing, calculated in accordance with s 19(3) of the 1988 Act, on the basis that the adjustment percentage is 75%.
90. I am, however, unable to quantify the amount that Mr Pelgrave was able to earn in employment with the Commonwealth during the period referred to in paragraph 89(a) above, because there is no evidence before me as to this issue. Further, I do not have full particulars of the evidence as to the normal weekly earnings of Mr Pelgrave with Qantas for the period referred to in paragraph 89(b) above; relevant information is contained in exhibit R5, but this has not been updated to show any changes after 1 July 2002. The calculation for the later period should of course be based on the adjustment percentage of 75%, being the percentage applicable after 45 weeks of total incapacity for work.
91. I should add that on my analysis of the history of this matter, it seems to me that it would now be appropriate for Mr Pelgrave to make further formal requests to Qantas for suitable employment, and to assess his capability to undertake a rehabilitation program. It would then be appropriate for Qantas to investigate, promptly and carefully, whether it can meet those requests. In this regard, I note that in the course of his cross-examination, it was suggested to Mr Pelgrave that there may be some positions in the Passenger Service Division of Qantas for which he may be suited after appropriate training. I also note that there was some suggestion in the evidence of Mr Rickards in the 1993 proceedings that Mr Pelgrave was very interested in obtaining a position as a flight attendant, but there were also issues as to whether he had the necessary academic qualifications for this work, and as to whether he was prepared to move interstate to take it up. There was no evidence as to the current opportunities for Mr Pelgrave to engage in this type of work with Qantas. It also may be worthwhile for the parties to investigate this further following the conclusion of these proceedings, and to obtain an updated medical assessment of whether Mr Pelgrave could now work as a flight attendant.
92. I further consider that Mr Pelgrave should now make genuine attempts to find suitable employment, if necessary by undertaking separate training or by applying for positions with on-the-job training. Any failure to seek employment with the Commonwealth (and, on the parties’ agreed position, with Qantas) might now be regarded as unreasonable in the light of these reasons and my above findings, and might mean that Mr Pelgrave would not be entitled to continuing compensation pursuant to s 19 of the 1988 Act.
Decision
93. For the above reasons, I set aside the decision under review, and:
(a)I remit the decision to the review officer who made that decision:
·to determine in relation to the period from the date when the applicant was last employed in about May 1998 until 30 June 2000, the amount of compensation (if any) which Comcare is liable to pay to the applicant by reference to these reasons for decision, including in particular my finding that the applicant was able to achieve earnings in suitable employment with the Commonwealth during that period, and my finding as to the kinds of employment that constituted suitable employment for the applicant; and
·to determine in relation to the period from 1 July 2000 to the date of this decision, the amount of compensation which Comcare is liable to pay to the applicant by reference to these reasons for decision, having regard in particular to my finding that the applicant has been unable to earn any amount in suitable employment during that period.
(b)I determine that Comcare is liable to pay to the applicant the amount of compensation (if any) determined by the review officer in accordance with paragraph (a) of this decision in relation to each of the periods referred to in that paragraph;
(c)I reserve liberty to apply within 14 days in relation to the costs of the proceedings, and order that in the absence of such an application, the respondent pay the costs of the proceedings; and
(d)I reserve liberty to apply within 14 days in relation to the implementation of this decision.
I certify that the 93 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 29 and 30 September 2004, and 7 March 2005
Date of Decision 11 March 2005
Counsel for the Applicant Mr A S Martin
Solicitor for the Applicant Langsfords Solicitors
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Australian Government Solicitor
- AGLC
- Pelgrave and Comcare [2005] AATA 214
- Case
- [2005] AATA 214
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the interpretation of the relevant legislation, particularly in relation to the definition of suitable employment and the assessment of the applicant's capacity to earn income in such employment. The court had to consider whether the former employer's cessation of business and subsequent change of ownership affected the definition of suitable employment. Additionally, the court needed to address whether Pelgrave's failure to seek suitable employment for a period was reasonable, taking into account his physical and psychological conditions. The court also examined the failure by Comcare and Qantas to consider Pelgrave's request to assess his capability for a rehabilitation program, and the incorrect assertion by Comcare that suitable employment had previously been offered to Pelgrave.
The Tribunal found that the decision under review was flawed and set it aside. It concluded that Pelgrave was able to achieve earnings in suitable employment with the Commonwealth during a specific period, but was unable to do so in the subsequent period. The Tribunal emphasised the need for a nuanced approach to determining suitable employment, taking into account the applicant's physical and psychological conditions. The court held that Pelgrave's failure to seek employment was not entirely unreasonable given his circumstances. It also noted the procedural errors in the handling of the rehabilitation program request and the incorrect assertion about previous offers of employment. Consequently, the Tribunal remitted the matter back to the review officer for a redetermination of the compensation payable, in accordance with the findings and reasons provided.
The final orders included setting aside the original decision, directing the review officer to redetermine the compensation payable for specified periods, and reserving liberty to apply for costs and implementation of the decision. The Tribunal mandated that Comcare was liable to pay the amount of compensation determined by the review officer, subject to potential cost and implementation applications within 14 days.
Orders
Orders of the court
The Tribunal sets aside the decision under review, and:
(a) the Tribunal remits the decision to the review officer who made that decision:
· to determine, in relation to the period from the date when the applicant was last employed in about May 1998 until 30 June 2000, the amount of compensation (if any) which Comcare is liable to pay to the applicant by reference to these reasons for decision, including in particular the finding that the applicant was able to achieve earnings in suitable employment with the Commonwealth during that period, and the finding as to the kinds of employment that constituted suitable employment for the applicant; and
· to determine, in relation to the period from 1 July 2000 to the date of this decision, the amount of compensation which Comcare is liable to pay to the applicant by reference to these reasons for decision, having regard in particular to the finding that the applicant has been unable to earn any amount in suitable employment during that period;
(b) the Tribunal determines that Comcare is liable to pay to the applicant the amount of compensation (if any) determined by the review officer in accordance with paragraph (a) of this decision in relation to each of the periods referred to in that paragraph;
(c) the Tribunal reserves liberty to apply within 14 days in relation to the costs of the proceedings, and orders that in the absence of such an application, the respondent pay the costs of the proceedings; and
(d) the Tribunal reserves liberty to apply within 14 days in relation to the implementation of this decision.
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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