SAMBASTIAN And AUSTRALIAN POSTAL CORPORATION
[2011] AATA 412
•17 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 412
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2007/2985
GENERAL ADMINISTRATIVE DIVISION ) Re ARMAND SAMBASTIAN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Professor P Reilly, AO, Member Date17 June 2011
PlaceAdelaide
Decision The Tribunal rejects the application to strike out the proceedings.
D G Jarvis
... [Signed] ...
Deputy President
CATCHWORDS
COMPENSATION - Commonwealth Employee – refusal to undertake rehabilitation program – held that tribunal could consider whether applicant’s medical condition constituted a reasonable excuse for failure to undertake rehabilitation program - held that resumed application to AAT for review following decision remittal should not be struck out.
Administrative Appeals Tribunal Act 1975 (Cth), s 42D
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 37(7)
Australian Postal Corporation v Pascoe [2003] FCA 390
Pascoe v Australian Postal Corporation (2004) 77 ALD 464
Re Bian and Comcare [2011] AATA 241
Re Corrie and Comcare [2009] AATA 203
Re Sambastian and Australian Postal Corporation [2010] AATA 141
REASONS FOR DECISION
17 June 2011 Deputy President D G Jarvis Professor P Reilly, AO, Member 1.These proceedings arise out of a reviewable decision by Australia Post to suspend Mr Sambastian’s rights to compensation on the grounds that he refused, without reasonable excuse, to undertake a rehabilitation program involving a postal walk round that was to commence in April 2007. In a decision dated 26 February 2010, we remitted this reviewable decision to the respondent for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), and gave detailed reasons for our decision: see Re Sambastian and Australian Postal Corporation [2010] AATA 141.
2.In a decision on remittal dated 27 April 2010, Australia Post affirmed its earlier determination. Mr Sambastian, by his former lawyers, then made a further application to review the decision on remittal. We assume that this application was made out of an abundance of caution, but in fact it was unnecessary, because under s 42D(8) of the AAT Act, if the decision-maker affirms the reviewable decision, the original proceeding resumes.
3.Mr Sambastian subsequently went to the United States of America and has terminated the instructions of his former lawyers.
4.In March this year, the respondent requested that the application be referred for a preliminary hearing and determination as to the correct construction and application of s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), and on the hearing of this application, requested us to strike out the proceedings.
5.In our reasons for our earlier remittal decision, we expressed the following views:
(a)a determination of whether an employee has a reasonable excuse within the meaning of s 37(7) of the SRC Act for refusing or failing to undertake a rehabilitation program should not be confined to the subjective excuse(s) proffered by an employee, and excuses that are objectively reasonable should also be taken into account;
(b)in determining the reasonableness of the employee’s asserted excuse as at the date of the refusal to undertake the program, decision-makers can and should take into account retrospectant evidence that is relevant to the reasonableness or otherwise of the employee’s refusal or failure as at the date of that refusal or failure; and
(c)section 37(7) was open to the construction that the reasonableness or otherwise of the employee’s excuse could be considered on a continuing basis (as opposed to considering that issue at the time of the employee’s refusal or failure to undertake the program), but we added that it was not necessary for us to express a concluded view on that issue as it had been addressed only briefly in argument before us.
6.We next identified further information that had become available to us since the date of the refusal, and referred to other information and inquiries that might also be relevant to the reasonableness of the excuse. We expressly took into account the decision of a Full Federal Court in Pascoe v Australian Postal Corporation (2004) 77 ALD 464 to the effect that it was not the role of this tribunal to consider the reasonableness or appropriateness of the rehabilitation program. We then concluded in effect that there was insufficient evidence before us in relation to issues which we thought should be further investigated to enable us to make a properly informed decision as to whether or not Mr Sambastian had a reasonable excuse for his refusal to undertake the program. For that reason, we remitted the matter to the respondent for reconsideration pursuant to s 42D of the AAT Act.
7.When the respondent reconsidered its earlier determination on remittal, it made no reference to having undertaken any further investigations in relation to the matters to which we had referred in the reasons for our decision, and presumably it did not carry out any such investigations.
8.On the hearing of the respondent’s recent application for a determination as to the correct construction and application of s 37(7), a number of contentions were made which suggested that the respondent did not fully understand our earlier reasons for decision. We will now consider these contentions in turn.
9.Counsel for the respondent, Mr Gilchrist, did not press the first contention in support of the strike-out application, namely the contention that decision-makers cannot take into account retrospectant evidence when considering the reasonableness of an employee’s excuse as at the date of the refusal or failure to undertake a rehabilitation program. In any event, we do not accept that contention. We adhere to the views set out in paragraphs 61-63 of the reasons for our earlier decision as to this aspect.
10.The respondent next contended that s 37(7) should not be construed so as to require considering the reasonableness or otherwise of the employee’s excuse on a continuing basis (as opposed to considering that issue at the time when the employee refuses or fails to undertake the rehabilitation program). However, our previous decision was not based on that construction of s 37(7). As mentioned in paragraph 74 of our earlier reasons for decision, this issue was addressed only briefly in argument before us, and it was unnecessary for us to express a concluded opinion on that issue. That remains our position.
11.The respondent’s contentions then addressed the two expressed excuses that Mr Sambastian had made for his refusal to undertake the program. This approach ignores the opinion we expressed in paragraph 56 of our reasons, where we concluded in effect that a determination of whether or not there was a reasonable excuse should not be confined to the subjective excuse(s) proffered by an employee, and that excuses that are objectively reasonable should also be taken into account. This conclusion led us to decide that there was insufficient evidence before us in relation to issues which we thought should be further investigated to enable us to make a properly informed decision as to whether or not there was a reasonable excuse for the refusal to undertake the program. That is why we remitted the matter to the respondent for reconsideration pursuant to s 42D of the AAT Act.
12.As to Mr Sambastian’s expressed excuse that engaging in the program would result in harassment from other workers, the respondent contended that the tribunal had rejected that excuse. In fact, we have not yet made any express finding as to this issue, but presumably this contention is based on the finding in paragraph 59 of our reasons that on the facts known as at the date of the refusal to undertake the program, Mr Sambastian did not have a reasonable excuse.
13.The respondent then submitted that Mr Sambastian’s second expressed excuse, namely that he had found the duties outlined unsuitable, entailed criticisms of the appropriateness of the program, and was irrelevant and inadmissible on the authority of Pascoe (supra). Mr Gilchrist focused in particular on the following passage of the judgment of Hill, Marshall and Finklestein JJ in Pascoe, at [14]:
“In our view the reference to “a rehabilitation program provided for the employee” in s 37(7) is one in respect of which a determination under s 37(1) has been made, and for which a program has been provided by an approved program provider. The appropriate way to challenge a particular program is to seek its reconsideration under s 38(2). This could involve an assessment of whether the factors set out in s 37(3) have been addressed. Unless the employee has sought a reconsideration, when considering whether an employee has a reasonable excuse for failing to undertake a rehabilitation program, the program in question is to be taken to be appropriate for the employee. It is not part of the s 37(7) exercise to gainsay the program made by an approved program provider following a s 37(1) determination. Consequently the factors set out in s 37(3) of the Act are relevant only to a decision made under s 37(1), as suggested by the opening words of s 37(3). As noted by the primary judge, although the s 37(3) factors are not necessarily irrelevant to a decision to be made under s 37(7), they do not inform that decision.”
14.Mr Gilchrist emphasized in particular their Honours’ comment in this paragraph that the program “is to be taken to be appropriate for the employee”. However, paragraph [14] of the judgment, and in particular the comment to which counsel referred, should be interpreted in the context of the paragraphs that immediately ensue. In paragraph [15], the court said in effect that the tribunal did not pose for itself the question of whether Mr Pascoe had an excuse for his failure to undertake the rehabilitation program, or whether that excuse was reasonable, but rather considered whether the program was an appropriate one for him. In paragraph [16], the court referred to the tribunal’s narration of the reasons for the refusal of the applicant to engage in the return-to-work program, in the following terms:
“Ÿ He had requested placement in a position suited to his physical restrictions and his training background (ex TD2/T131). This, from other evidence, would have been, in Mr Pascoe’s view, an information technology position.
·He told the CRS that he preferred working outdoors.
·Dr Hollo considered that Mr Pascoe could not cope with the idea of working indoors.
·He had tried letter sorting at an earlier time and had been unsuccessful at that work.”
After quoting the above descriptions, the Full Court said, at [17]:
“Those issues or reasons identified by the AAT are reasons why the program may not be suitable for Mr Pascoe, but they do not bear on the question of whether he had a reasonable excuse for failing to attend to undertake the program. The reasons of the AAT do not disclose any findings of fact which deal with whether Mr Pascoe had a reasonable excuse for failing to undertake the particular program, which he was required to undertake.”
15.We think that the extract from paragraph [14] of the Full Court’s judgment in Pascoe must be understood in the context of the facts of that case and the Court’s criticism of the tribunal’s approach to interpreting s 37(7). We do not understand the Full Court to have been intending to preclude decision-makers, or this tribunal on review, from considering the issue of whether an employee’s medical condition would prevent the employee from undertaking a program or put the employee at risk of exacerbating an injury or disease, and so constitute a reasonable excuse for refusing or failing to undertake the program.
16.We think that our understanding is also consistent with the judgment of Whitlam J in the court below, in Australian Postal Corporation v Pascoe [2003] FCA 390. The Full Court agreed with this judgment insofar as it related to the issue of whether the tribunal had asked itself the wrong question in considering the issues raised by s 37(7). Whitlam J, at [13], recounted the grounds of the employer’s appeal against the tribunal’s decision, which we note included the grounds that the tribunal did not appreciate the need to make findings of fact identifying the nature and extent of Mr Pascoe’s medical restrictions sufficiently to determine his fitness for the duties that were provided for him, and that the tribunal failed to consider (as it was required to do) whether Mr Pascoe was prevented from doing the said duties by actual physical or psychiatric restrictions, as opposed to his preference or desire not to undertake what was being provided for him. His Honour then referred to the argument of counsel for Australia Post that it could not be a reasonable excuse merely because the employee did not agree with some aspects of the program or did not want to do the work, that Mr Pascoe’s attitude could not supply a “reasonable excuse”, and that the tribunal did not address the issues of Mr Pascoe’s actual physical and mental incapacity. He went on to say, at [18], that the employee’s dissatisfaction with the terms of a program could not furnish a reasonable excuse, and that in broad terms, he accepted the submissions on behalf of Australia Post. He added:
“I am reluctant to speculate about what might constitute reasonable excuses. They are, in my view, most likely to concern things that occur, or at least come to attention, after the making of the relevant determination. [i.e. the determination to undertake a rehabilitation program]. To that extent, counsel for Mr Pascoe may be correct in submitting that the factors set out in s 37(3) are not necessarily excluded, but it is much more likely that an excuse must relate to the employee’s ability to undertake the program.”
17.We note that in a recent decision of this tribunal, namely Re Bian and Comcare [2011] AATA 241, Professor RM Creyke, Senior Member, decided that the applicant’s health could, on the evidence in that case, be affected by the rehabilitation program, and that this was one of the matters that constituted a reasonable excuse. Similarly, in Re Corrie and Comcare [2009] AATA 203, Miss EA Shanahan, Member, decided that the applicant’s medical condition constituted a reasonable excuse for her failure to undertake a rehabilitation program. We think with respect that these decisions are examples of the correct application and interpretation of s 37(7).
18.In the present case, we pointed out in the reasons for our previous decision that after the rehabilitation program had been determined, Dr Meegan (an occupational physician who had provided advice to Australia Post at a work-site agreement taking into account Mr Sambastian’s left shoulder condition) provided a later report in which he said that he had overlooked a separate condition, namely the condition of the right elbow. He then expressed the view that the rehabilitation program would exceed Mr Sambastian’s restrictions and aggravate his condition. However, it appears that Dr Meegan was not familiar with the trolley or footpath that would be involved in the walk round. When the matter came before us, it seemed to us that further medical assessments should be undertaken, taking into account the nature of the footpath and the manner in which the trolley could be pushed and (if necessary) manoeuvred, so that medical witnesses, and we in turn, would be able to understand the effect of undertaking the program and its likely effect (if any) on the condition of the left shoulder and right elbow. We considered that this information would be relevant and of assistance in determining whether or not there was a reasonable excuse within the meaning of s 37(7) for the failure to undertake the program.
19.We remain of the view that in applying s 37(7), the tribunal should, in matters where this is relevant, take into account the medical condition of the employee in deciding whether there was a reasonable excuse for a refusal or failure to undertake a rehabilitation program, and that appropriate information should be available to witnesses who provide opinion evidence, and to the tribunal, in order to arrive at an informed decision on this issue.
Decision
20.We reject the application to strike out the proceedings.
I certify that the 20 preceding paragraphs are a true
copy of the reasons for the decision herein of Deputy President D G Jarvis and Professor P Reilly, AO, Member... [Signed] ...
AssociateDate/s of Hearing 13 May 2011 and 2 June 2011
Date of Decision 17 June 2011
Applicant In person by telephone
Counsel for the Respondent Mr K Gilchrist
Solicitor for the Respondent Gilchrist Connell
5
0