"SAAG" and Comcare
[2006] AATA 68
•27 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 68
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/42
GENERAL ADMINISTRATIVE DIVISION ) Re “SAAG” Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member L Hastwell Date27 January 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – incapacity payments – normal weekly earnings – ability to earn (AE) – determination of AE – other relevant factors in determining AE – reduction in salary arising from disciplinary action – can salary reduction be considered in determining AE – decision affirmed
Safety Rehabilitation and Compensation Act 1988 ss 8(10), 19(2), 19(4)(g)
Bortolazzo v Comcare (1997) 75 FCR 385
REASONS FOR DECISION
27 January 2006 Senior Member L Hastwell 1. The applicant suffered an aggravation of a pre-existing back injury while working for Australian National Railways (ANR) in 1989. In 1994 he took a voluntary redundancy package from ANR and commenced employment with the Department of Employment, Education, Training and Youth Affairs (DEETYA), now Centrelink. The respondent (Comcare) subsequently determined in 2001 that the redundancy was not genuinely voluntary, as a result of which the applicant became entitled to “top-up” payments of compensation of the difference between his normal weekly earnings (NWE) at ANR and what it was considered he was able to earn in suitable employment, namely his income from Centrelink.
2. In February 2003, the applicant’s pay classification was reduced as a result of a finding that he had breached the Australian Public Service Code of Conduct (the APS Code) by improperly browsing client records on 92 occasions. He was also formally reprimanded.
3. The applicant thereby sustained a reduction in income. Comcare then accepted the advice of Centrelink that although the applicant’s salary had been reduced, his “able to earn” (AE) for the purposes of calculating his entitlement to top-up compensation should remain at the level that it was prior to the pay reclassification which arose out of the disciplinary process.
legislation
4. The relevant legislation is contained in s 19 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) which provides as follows:
“(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay 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.
(2A)For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a)it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b)the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours.
…
(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:
…
(g) any other matter that Comcare considers relevant.”
5. Section 8(10) of the SRC Act was referred to by Comcare and provides:
“(10)If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a)where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b)where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:
(i)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.”
issues
6. The issues for the Tribunal to determine are as follows:
·During the period, when a sanction of reduced salary was being applied to the applicant, what was his AE for the purposes of s 19 of the SRC Act?
·In ascertaining the applicant’s AE during that time, is the Tribunal entitled to have regard to the disciplinary process that resulted in a reduction in his actual earnings during that relevant period?
·Is the sanction imposed on the applicant a relevant matter in determining his (AE)?
hearing
7. The applicant represented himself at the hearing and gave evidence. The T documents and Supplementary T documents were received into evidence as were a number of other exhibits, and where relevant they will be referred to by the Tribunal.
8. The applicant was a straightforward witness. He acknowledged the breaches of the APS Code and the sanctions imposed. Nevertheless, he was firmly of the view that his culpability should be viewed in the context of actions of his employer that in his mind increased his level of depression over the time that he was offending as a result of which he said his judgement was impaired. He contended that his AE figure should be adjusted during the period of reduced earnings to the actual figure he earned and his top-up compensation should have increased accordingly.
9. The breaches of the APS Code occurred between 9 October 1997 and 10 September 2002. The applicant spent some time outlining the level of disability and depression he was experiencing during that period. He pointed to memos and medical reports and communications with his employer contained in the T documents that confirmed that he was having an ongoing dialogue with his employer from 1997 onwards about his work situation and about appropriate modifications to his work situation so that he could successfully manage his disabilities within the context of his employment.
10. The applicant referred to ST20 (Exhibit A2) and recommendations made by Judy Vardon as to restrictions that should be put on his employment to enable him to manage better. In his view local management did not implement the recommendations.
11. Eventually he gave up trying to persuade local management to make the modifications necessary and he got on with his job. In his words, he “slid into a deeper depression”. Between 1997 to 2002 he told the Tribunal that his level of depression was increasing, and that during this time he was not the best judge of what he should or should not be doing. The breaches occurred during this time.
12. He minimised the breaches. He told the Tribunal that some of the offences involved him changing details of family incomes in the system to save members of his family having to come in personally to Centrelink to advise of changes. He claimed this was done with the knowledge and consent of the individuals involved. He acknowledged that it was against the rules.
13. He admitted accessing his son’s records while his son was living interstate and without his son’s knowledge, as he was concerned about his son’s wellbeing at the time. He also accessed a neighbour’s records, and the records of the partner of one of his children. In the former case, he said this was to “verify what was happening”. It was not entirely clear what he meant by that.
14. The applicant was aware that he may lose his job as a result of the breaches of the APS Code. He was relieved when that did not occur. The sanction of reduced salary has since ended, and he is back on his normal pay classification.
15. In cross-examination the applicant was referred to two reports relating to his performance in the workplace, one dated 28 May 2002 (Exhibit R2), and the other 23 November 2002 (Exhibit R3). Both reports spoke of him in glowing terms, and there was no suggestion in either report that he suffered any workplace difficulties or emotional difficulties that impacted on his workplace performance. The applicant agreed with the accuracy of the comments made in each report. He agreed that he always attempted to do his job to the best of his ability and that he was very good at doing what he did, despite the way he felt internally.
16. The applicant confirmed the accuracy of various aspects of the record of disciplinary process (Exhibit R1), including the original record of interview for the purposes of the matter which he said accurately described the situation. He agreed that he had quite rational reasons for browsing records, and that he justified it to himself. He described it as being a decision based upon what he felt was important to him at the time.
17. He confirmed the accuracy of the contents of the letter contained in Exhibit R1 Annexure C dated 12 March 2003 which he wrote to Mr Pyke who was the original decision maker in the disciplinary process. In that letter he commented that he had a choice and he made the wrong choice. In evidence he agreed that he was aware from his initial training that his actions amounted to a breach of the APS Code, but he said that he did not realise the seriousness of the offence.
18. Dr Cindy Padman gave evidence by telephone on the applicant’s behalf. Her reports of 27 March 1995 (ST7) and 15 April 2005 (Exhibit A3) were also before the Tribunal as was a report dated 11 December 2002 (Exhibit R1) which she had provided to Mr Pyke when the disciplinary process was occurring.
19. Dr Padman confirmed that the applicant had been suffering from depression for a considerable period of time. She recalled writing letters to Centrelink about his duties. She said that she saw him frequently as time went by and she confirmed that from 1999 to 2001 in particular she was seeing him frequently with respect to issues of depression. She pointed out that his depression took a fluctuating course, and the applicant had usually seen her when things were becoming more difficult for him. She had prescribed a variety of medications for treatment of his depression, but many had unpleasant side effects and so he did not continue on them.
findings of fact
20. The applicant was born on 31 July 1956 and is 49 years of age.
21. The applicant is a recipient of “top-up” payments of compensation under s 19 of the SRC Act, arising out of an exacerbation of a back injury in 1989 in the course of his employment with ANR. He commenced employment with DEETYA, now Centrelink, in 1994 and he has worked there continuously since that time. He continues to be eligible for “top-up” compensation payments.
22. At all relevant times for the purposes of this decision, the applicant was employed by Centrelink.
23. In January 2003 disciplinary action was taken against the applicant when it was discovered that he had accessed Centrelink customer records improperly and without authority.
24. An internal disciplinary process was conducted. The applicant was given every opportunity to present his case in this process and procedural fairness was accorded to him. The applicant raises no complaint with that process. The applicant had the opportunity to present any mitigating factors with respect to penalty during the disciplinary process. He did so including providing a letter from his medical practitioner, Dr Padman, outlining issues relating to his depression.
25. By letter dated 23 January 2003 (Exhibit R1) the breaches were found to be proven and a penalty of a reprimand and a reduction in salary from Centrelink 2.08 to Centrelink 2.06 was imposed.
26. The Merit Protection Commission subsequently affirmed that decision.
27. At the date of this hearing, the applicant’s income had been restored to its previous level. The total loss of income sustained by the applicant as a result of the drop in his salary was in the realm of $5,000.
28. One other possible sanction available to the decision-maker was termination of employment. That sanction was not imposed.
29. In making his determination as to sanction, the officer involved took into account all the information provided and made specific reference to supporting information provided by the applicant’s doctor and pastor (Exhibit R1, Annexure B). In a record of interview with the applicant, the difficulties that the applicant had been experiencing in his employment arising out of his pain, depression and the sequelae of the injury were described. The reasons for his accessing records were also fully outlined in material that was considered by the delegate.
30. The applicant at all times knew that his conduct in improperly accessing records was wrong.
31. The applicant, despite his physical and emotional problems, is highly regarded as an employee and all available work assessments indicate that he continued to carry out his duties of employment in an exemplary fashion during the period of the offences. There were no overt signs of any deterioration in his work performance.
32. The applicant does suffer from depression and back pain for which he has received ongoing treatment. Throughout the period of his offending he was suffering from depression and other physical problems. However, he continued to function well in the workplace, and at no stage is there any evidence that he was so overwhelmed by this depression that his rational judgement was impaired. To the contrary, he remained by all accounts very competent and rational throughout.
33. All relevant mitigating circumstances were before the decision-maker who imposed the sanctions and were taken into account in imposition of the sanctions.
34. The applicant had rational reasons for all the occasions that he browsed records. Some occasions related to changing the financial details of his family on the system, with his family’s consent and for their convenience, and other browsing related to him wanting to know more about his son’s movements as his son had left home and was living interstate. He also browsed the records of two unrelated third parties that were known to him.
consideration and application of the law
35. The applicant presented as an intelligent and clearly competent man which reflected in his evidence and also in numerous documents before the Tribunal, including work assessments. Nevertheless he sees himself as a victim in the context of his breaches of the APS Code and effectively seeks to blame his employer. The evidence does not sustain this perspective.
36. There is no evidence of ill treatment of the applicant by his employer and it appears from the T documents that a lot was done to accommodate the applicant’s complaints from time to time about his employment conditions. This is not an issue for the Tribunal in any event, but on the face of it, the applicant appears to have exaggerated to the Tribunal any workplace difficulties he may have experienced over time.
37. The applicant received a relatively modest penalty for his breaches of the APS Code given what could have occurred and the mitigating circumstances of his compensable injury and his depression were all before the decision-maker who imposed the penalty, and were taken into account at the time.
38. The applicant asks the Tribunal to now make a finding with respect to his AE during the period of his sanction being imposed that would have the effect of negating the effect of the penalty imposed. This would render the disciplinary process meaningless in that the sanction would be removed by way of “top-up” compensation from the Commonwealth. The Tribunal does not accept that this was possibly intended by the legislator and the very reason that a provision such as s 19(4) of the SRC Act has been included is to enable the decision-maker some discretion in determining AE.
39. Comcare refers to s 8(10) of the SRC Act in submissions as an indication of the underlying legislation policy, namely, that the “top-up” provisions are not intended to make a person better off than they would otherwise be were they not incapacitated. The Tribunal agrees with this analysis.
40. Section 19 of the SRC Act deals with how “top-up” payments of compensation are calculated. The formula used is as set out in s 19(2) of the SRC Act and the critical issue in this case is to determine the amount per week that the applicant could earn in suitable employment as required in s 19(2)(a) of the SRC Act during the period of sanction.
41. Section 19(4) of the SRC Act sets out the criteria that are to be considered in determining an employee’s AE. The matters set out therein are directed at ensuring that an employee for instance is not better off by refusing an offer of suitable employment after becoming incapacitated for work thereby ensuring that a higher amount of compensation is paid to them by refusing suitable employment.
42. Section 19(4)(g) of the SRC Act specifically enables the Tribunal to consider any other relevant matter in determining what an employee is able to earn in suitable employment.
43. Comcare referred to Bortolazzo v Comcare (1997) 75 FCR 385 at 388 where Heerey J comments:
“The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of work-related injury. However, it follows conversely that the injured employee should not be better off.”
44. The applicant asks the Tribunal to find that his AE during the relevant period was at the reduced level of pay. This would put him in a better position than a person who had such a penalty imposed and was not eligible for “top-up” compensation. The Tribunal finds that this is a relevant factor that is to be considered under s 19(4) of the SRC Act in determining AE.
45. It is contrary to common sense and certainly not in the interest of good government or the orderly running of the public sector if a person in receipt of “top-up” compensation payments can avoid a penalty for serious breaches of the APS Code in this way by receiving “top-up” payments to negate the effect of the penalty.
46. The Tribunal does not accept that there is any compelling evidence that the applicant’s compensable injuries drove him to breach the APS Code in any event, and to the extent that his compensable injuries may have been involved at some minor level, they have been taken into account by the decision-maker who imposed the penalty and by the Merit Protection Commission who reviewed that penalty.
47. The Tribunal accepts the arguments put by Comcare that in determining the applicant’s ability to earn, the Tribunal has discretion and can consider relevant other factors as provided for in s 19(4) of the SRC Act. The fact that a person’s AE has been reduced as part of a disciplinary process is such a relevant factor. The applicant should not profit from his own admitted wrong doing.
48. The applicant’s ability to earn has been correctly calculated as being what he was able to earn prior to the penalty being imposed.
49. In the circumstances the Tribunal affirms the decision under review.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ...........J Coulthard..................................
AssociateDate of Hearing 16 September 2005
Date of Decision 27 January 2006
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent AGS
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