Reeves and Repatriation Commission
[2002] AATA 310
•18 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 310
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1375
VETERANS' APPEALS DIVISION )
Re CLARENCE REEVES
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen; Dr P Lynch, Member
Date18 April 2002
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1375
VETERANS' APPEALS DIVISION )
Re: CLARENCE REEVES
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr P Lynch, Member
Date 18 April 2002
Place Sydney
DecisionFor the reasons given orally at the conclusion of the hearing in this matter the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Application for Special or Intermediate Rates of Pension. Applicant accepted redundancy after industrial dispute. Application of the alone test.
Veterans' Entitlements Act 1986 – s23; s24; ss 120(4) and (6)
Repatriation Commission v Smith 15 FCR 327
Forbes v Repatriation Commission 58 ALD 394
REASONS FOR DECISION
Senior Member M D Allen
Dr P Lynch, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the two preceding pages are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed:
..................................................................................……………………………….Associate
Date of Hearing 17 April 2002
Date of Decision 18 April 2002Counsel for Applicant Mr M Vincent
Solicitor for Applicant Dibbs Barker Gosling
Representative for Respondent Ms P Hook, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1375 of 2000
By MR M.D. ALLEN, Senior Member
and DR P. LYNCH, Member
REEVES v REPATRIATION COMMISSION
SYDNEY WEDNESDAY, 17 APRIL, 2002
MR ALLEN: Pursuant to an application made 28 August 2000, the applicant seeks review of a decision of the respondent of 18 October 1999, as affirmed by a Veterans Review Board on 16 August 2000, that continued the rate of disability pension paid to him at the rate of 100 per cent of the general rate. The applicant has the following conditions accepted as war caused, namely, sensory neural hearing loss, anxiety state - which it might be mentioned was accepted on 26 April 1984 - and bilateral tinnitus, together with the condition of alcohol dependence which was accepted on 3 July 2001. Before proceeding any further with these reasons, we would state at the outset that we adhere to our earlier decision of 20 September 2001 when this matter was first before us that the applicant's alcohol dependence is a separate condition albeit caused by war service, and that part of the applicant's inability to engage in remunerative work has to be assessed as against that particular condition as well as his anxiety state.
The applicant's claim is that he is entitled to pension at either the special rate, pursuant to section 24 Veterans Entitlements Act 1986 or the intermediate rate pursuant to section 23 of the said Act or indeed a combination faced in different periods. The crucial test for both rates of pension can be summed up by reference to paragraphs (b) and (c) of section 24(1), which has as its equivalent provisions paragraphs (b) and (c) of section 23(1), namely in the case of permanent incapacity.
Is the veteran's incapacity from war-caused injury or war-caused disease, or both, of such a nature, as of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
Where as paragraph (c) reads:
The veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity.
We would only mention that in this particular case the ameliorating provisions of section 24(2)(b) or its equivalent, section 23(3)(b), do not apply in this particular case as there is no evidence that the applicant has been genuinely seeking to engage in remunerative work. Indeed it is clear evidence that once he had accepted a redundancy from his prior employment, he has not actively sought any employment whatsoever.
So far as the standard of proof in this matter is concerned, it is section 120(4) of the Veterans Entitlements Act, that is to say:
The Tribunal must decide the matter to its reasonable satisfaction.
As was pointed out in Repatriation Commission v Smith 15 FCR 327, that standard is the civil standard of proof, namely, proof on the balance of probabilities. As section 120(6) point out however, neither party to this review bears any onus of proof.
The applicant's history for these purposes really starts in 1974 when he obtained a position with Patricks Stevedoring Company. Such a position being what is commonly referred to as a waterside worker. He remained in that position and in or around 1979 also took on additional duties as a delegate of the Waterside Workers Union. It can be said that as a delegate of that union he was involved on a regular basis in conflicts with management. Indeed in February 1994, he was dismissed by Patricks. However, after court action for wrongful dismissal, it was ordered that he had to be reinstated. In the interim, however, the applicant had progressed through the work force and in 1990 was promoted to a level referred to as a G6, which the applicant explained was in effect a foreman's position.
He says that he was having increasing difficulty coping with his duties. However, suffice it to say that he remained in employment and remained as a union delegate up until or around April 1998. It is of course now common knowledge that in around Easter of 1998, there was severe industrial dispute with the Patrick Stevedoring Company on the one hand and its work force on the other. At one stage during that dispute, the management of Patrick Stevedoring on behalf of one of its managerial employees, took out an apprehended violence order against the applicant. It is of course, no part of the proceedings of this Tribunal to canvass those particular events in any details, suffice it to say, that the applicant denied in cross-examination, using the words of abuse which had been attributed to him. As he said, the alleged words of threat and abuse were "not my style of talking".
Whatever the circumstances of that apprehended violence order, when the Federal Court ordered that the employees of Patrick Stevedoring be reinstated in their position, the applicant said that he was not allowed back to work. As we understand his evidence, management classed him as "an undesirable", and although he was part of the Patrick Stevedoring workforce, he was not offered any rostered shifts. In other words, he wasn't offered any work. As he said in his statement:
In July of 1998, I finalised a deal with Patricks and they were forced to give me shifts. By this stage my nerves were totally destroyed, I felt incapable of working there now because I was constantly anxious. I knew what my employers thought of me and that made things worse. I didn't want to work where I wasn't wanted and I felt like I was going to do something wrong all the time.
He then added in his statement which became exhibit A2:
In September 1998, I was offered a redundancy package that said I was one of a few people who were offered this.
In cross-examination he said, however, that probably three quarters of the work force at Darling Harbour where he had been employed took redundancies. This is consistent with his evidence to the Veterans Review Board where he said:
All the workers then returned to work but when the veteran did so he discovered that he had not been rostered and was told he was considered undesirable and it would be a breach of the company's lease to let him, an undesirable, onto the premises.
Again, he confirmed that evidence before us today. But then, the Veterans Review Board notes:
In the circumstances, the union advised him to take the offered redundancy. When he agreed to accept the package like 75 per cent of the workers, he was allowed on to the premises and he worked for a couple more weeks before he finished up on 13 September 1998.
As we said earlier, he said today, that probably three quarters of the work force took redundancies. He did say that he would have liked to have gone on working but not under the conditions imposed. He further said:
I saw the opportunity then to get out - my sanity for the rest of my life.
Similar histories have been given to the various medical practitioners who have examined the applicant. In her report of 1 June 2001, Dr Harvey Sutton says, referring to his anxiety/post traumatic stress disorder:
Whilst he did not lose his job because of his condition, I am of the opinion that he worked in a semi-protected work environment and when that working environment was opened up he would probably
and the Tribunal emphasises the word "probably":
have not been able to continue working in his position because of his condition.
We would only add that that comment by Dr Harvey Sutton is speculation and indeed the applicant was not given the chance to continue working because management had determined for other reasons that he was not a person whom they wished to retain in their work force. It may well be that currently the applicant may or may not be able to undertake some form of employment. Suffice it to say that there is simply no evidence one way or the other as to his attempting any employment. He also has stated and find as a fact that he was dismissed effectively by being offered a redundancy package arising out of the industrial disputation between Patrick Stevedoring and its workforce.
The criteria of sections 23 and 24 of the Veterans Entitlements Act have been discussed in several cases in the Federal Court, the most recent of which is Forbes v Repatriation Commission 58 ALD 394. There at paragraph 31 of his judgment his Honour Nicholson J, says in Repatriation Commission v Smith, 15 FCR 327 at 337, it was said:
As has been said the question proposed 24(1)(c) is one of hypothetical facts. The Tribunal must attempt an assessment of what the respondent probably would have done if he had known of his service disabilities.
His Honour continues at paragraph 32:
In Cavell v Repatriation Commission 9 AAR 534 at 539, Burchett J agreed with Davies J in re Easton v Repatriation Commission 6 AAR 558 at 570, 571: The word "alone" should not have substituted for it other words in the absence of ambiguity. He saw the requirement of the word alone as it appears in section 24(1)(c) as requiring a practical decision whether the veterans loss of remunerative work is attributable to his or her service related incapacities and not to something else as well. He regarded that as a decision not to be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
At paragraph 33, his Honour continued:
Burchett J also referred to a statement by the Tribunal in Cavell, that it followed from the use of the word "alone" in section 24, that any factor having employment consequences which played a part in the applicant's inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant's case for pension at the special rate.
In this matter it seems that it was made clear to the applicant after the dispute that he would not be rostered for work. If the question is why did he take up the redundancy - then the inference is clear - his employers had made it clear to him that he was unwanted as an employee and as he said to the Veterans Review Board it would appear that he was advised to take it anyway as did three quarters of his fellow workers. It was the industrial dispute that led to it.
In coming to our decision too, we would refer to the second reading speech of the then Minister for Veterans Affairs in speaking to the Veterans Entitlements Bill 1985 relating to amendments which created the current section 24:
The amendments clarify the eligibility criteria and make it clear that to qualify for a TPI pension, the veteran must be eligible for the 100 per cent general rate pension. In addition the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of the working life or, and we emphasise these words, has retired voluntarily or has left employment for reasons other than accepted disabilities, the TPI pension is not payable.
Pursuant to the application, we consider similar matters apply here, that the veteran retired from work because he was offered a redundancy following industrial disputation. At the time, for all his accepted disabilities, he was still working and anything else is theoretical.
The decision under review is therefore affirmed.
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