Saunders and Comcare (Compensation)

[2017] AATA 2411

Saunders and Comcare (Compensation) [2017] AATA 2411 (30 November 2017)

Division:GENERAL DIVISION

File Number(s):      2015/0686-7

Re:Damon Saunders

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:M J McGrowdie, Senior Member

Date:30 November 2017

Place:Sydney

The decision under review is set aside and the matter is remitted to Comcare for the determination of the compensation payable to the applicant as from 24 February 2014.......

.......................[sgd]...................................................

M J McGrowdie, Senior Member

CATCHWORDS

Workers Compensation — Reduction by Comcare of normal weekly earnings - calculation of normal weekly earnings - where worker partially incapacitated for work - where change in work role and loss of shift allowance - whether compensation payable for the loss - employer's mobility process – decision set aside and remitted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 8

CASES

Bortolazzo and Another v Comcare (1997) 75 FCA 385

Comcare v Simmons [2014] FCAFC 4
Hobday v Comcare [2016] AATA 504

REASONS FOR DECISION

M J McGrowdie, Senior Member

30 November 2017

INTRODUCTION

1. The applicant, Damon Saunders, born in 1975 brings these proceedings against the respondent, Comcare, in respect of decisions made in relation to the effects of accepted injuries following events on 15 April 2009, whilst in the employ of the Australian Customs and Border Protection Service (the Service).

   BACKGROUND

2. On 15 April 2009 the applicant injured his back whilst playing sport at work. Earlier, and in 2007, he slipped at work and injured his back. Against the background of earlier injury, Comcare accepted liability for injury sustained on 15 April 2009 as an aggravation of lumbar sprain and aggravation of pelvic sprain. Further, and secondary to this accepted condition, Comcare accepted injury by way of an adjustment reaction with anxious mood sustained on 6 January 2014.

3. On 16 January 2015 two reviewable decisions were issued by Comcare in respect of the accepted conditions. They were in identical terms, one issued for each of the accepted conditions. Each confirmed the determination made on 1 October 2014, that the applicant's normal weekly earnings (NWE) as at 24 February 2014 and calculated under section 8 of the Safety Rehabilitation and Compensation Act 1988 (the Act), were $1,431.52. Previously they were $1,733.71, the difference representing the loss of a shift allowance. This was because the applicant had been transferred to a non-shift position.

4. The applicant commenced employment with the Service in early 2000 in a Level 1 position. In 2005 he commenced to do blocks of higher duties in a team leader position at Level 2. Subsequently, the applicant was confirmed at Level 2. In 2006, the applicant was transferred from working at Sydney Airport to a position at Custom's House in a Customer Service Call Centre as a Level 2.

5. The call centre was known as the Customer Information and Support Centre (the CI and SC) which dealt largely with inquiries from Customs Agents with respect to cargo. The applicant's work involved the applicant in dealing with telephone and email inquiries.

6. Following his 'back' injuries, the applicant found some aspects of the job challenging as his mobility was reduced particularly with regard to prolonged sitting and standing. Although he could move around, a lot of the work had to be done at a computer screen. The applicant was on a graduated return to work program and he was working reduced hours. Nonetheless, the applicant was being paid a shift allowance which was attached to the position.

7. Also, he had some difficulty with parking for work at Customs House as the parking provided was quite some distance away and so the applicant would pay for parking closer to his workplace due to his mobility problems. This is another matter with regard to difficulties experienced by the applicant with the work at Customs House consequent upon the injuries sustained by the applicant.

8. In 2011 the applicant applied to the respondent for a transfer to Sydney Airport as part of the employer's Mobility Program. The employer had in place a mobility program consistent with the policy for Level 1 to Level 5 employees to rotate between positions generally based on tenure. Under the policy there is no minimum or maximum period of tenure that is applied. However, in general, tenure of three years would be regarded as a trigger for mobility. An employee with a period of tenure in a current role of five years is given priority consideration for mobility. The policy was to refresh the workforce as well as to mitigate against the risk of potential corruption or misconduct. An application for mobility transfer could be submitted by an employee or could be agency generated with consultation with the employee as to preferences and the like. An employee application for mobility transfer might not be successful depending on the availability of an alternate position and movements out of any requested position. The position sought by the applicant was in the Operations/Enforcement area which was a shift position.

9. The applicant's previous applications for mobility transfer in 2011 and early 2013 were not successful. In October 2013, there was an agency generated initiative for mobility in respect of the applicant. The applicant was, nonetheless, encouraged by his supervisor to submit an application so that the applicant could express his preferences. The applicant did so and requested a transfer to a shift position at Sydney airport.

10. The applicant was successful in obtaining a transfer to Sydney Airport, however, it was to a non-shift position. The applicant had little choice other than to accept the transfer and was unaware that he would lose the shift 'top-up'. The consequence, however, was that the applicant lost the shift allowance he had been getting.

11. The applicant's submission is that his injuries were a significant consideration in the employer's decision to place him in that position at the Airport and he should be entitled to compensation for the loss of the shift allowance. There were both shift and non-shift positions at the airport. The respondent's submission is that the applicant's injuries were irrelevant to the placement and not everyone who wants a shift position gets it. That is, it is an incident of the mobility process.

12. The position to which the applicant was transferred was in the Compliments and Complaints section, a relatively clerical job. He was given an assistant, who had been doing the job previously, and handled about three complaints a day. This might involve interviewing relevant staff, viewing CTV footage and writing up a report on a computer. The applicant felt that he had simply been found something to do at the airport at a cost to the applicant of the shift allowance. The job certainly accommodated his injuries and he was still working reduced hours. It would have also addressed for the employer, the difficulties that the applicant was complaining of at Customs House. The applicant commenced the position on 24 February 2014.

13. The applicant submits that because of his injuries, he was excluded from a whole range of jobs in the mobility rounds and had to disclose his physical limitations. A further factor was that the applicant was on reduced hours. According to the applicant he was severely disadvantaged in terms of the mobility program because of the limitations placed upon him and that the employer had limited choices as to where and in what job the applicant could be placed. This, he says, more than anything else, led to him losing a shift position.

14. The respondent says that although his physical restrictions would have been considered and accommodated, the ordinary application of the mobility program did not guarantee a transfer from a shift position to a shift position and that the transfer could be to a non-shift position.

15. The applicant continued working in the non-shift position at Sydney Airport until he went off work for a left hip replacement in 2015.

    ISSUES

16. The issues are whether the applicant's transfer to a non-shift position in the implementation by the respondent in its Mobility Transfer Program was to a significant extent a result of the applicant's injuries; and, whether his loss of the shift allowance is compensable.

    LEGISLATIVE PROVISIONS

17. As a result of the applicant's transfer to a non-shift position the applicant ceased to receive the shift allowance once his NEW was recalculated under section 8 of the Act on 24 February 2014.

18. Section 8(1) relevantly provides that:

    For the purposes of this Act, the normal weekly earnings of an employee ... before an injury shall be calculated (to include) the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period.

19. The "relevant period" has the meaning ascribed to it as contained in section 9, which for present purposes is a period immediately before the date of injury. In the applicant's case this included a shift allowance.

20. Sub-section 10 relevantly goes on to provide that if the amount of the normal weekly earnings of an employee before an injury as previously calculated under section 8(1) would exceed, in the case of an employee who continues to be employed, the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work.

21. According to the applicant, the amount he would likely earn were he not incapacitated for work, would have included a shift allowance whereas the respondent's position is that it would have been no more likely that the applicant would secure a shift position in the mobility program, than not.

22. There is no dispute that the mobility program applied to the applicant, nor is there any dispute that it was time for the applicant to move under the Program. However, and according to the applicant's argument, it was the restriction on the hours he could work because of his injuries and the physical restrictions on his mobility and capacity that he was put into a position which was non-shift.

23. The respondent argued that the accepted injuries did not influence whether the applicant was placed into a shift or non-shift position as most officers who had the airport as their preference sought shift positions, however, not every position available was a shift position.

    THE RESPONDENT'S EVIDENCE

24. A number of persons employed by the respondent made statements and gave oral evidence.

    Celia Medley

25. Celia Medley made a statement dated 8 December 2015. She stated that she was currently the Superintendent of the NSW Compliance Field. From late 2011 to mid-2015 she was the Director of the Customs Information and Support Centre and involved in the administration of the mobility process. In her statement, Ms Medley described the general operation of that process and refers to there being a Committee established to run the process. Ms Medley was on the Committee.

26. Ms Medley indicated that in the February 2014 mobility round the applicant was tagged as a priority for a mobility transfer and noted that the applicant's preference for the airport in Enforcement and Investigation and there was competition for those roles. Ms Medley indicated that a move for the applicant to the airport would provide him greater experience. Ms Medley acknowledges that the applicant, because of his injury, could not perform all of the roles within Customs and that the role would suit the applicant in terms of his restrictions as it was an administrative role.

27. In oral evidence Ms Medley indicated that as the applicant had had a shift position for some time it could have been time to give someone else a go who wanted shifts. She also explained that the process would also have required a person available to go into the applicant's former position.

28. Ms Medley accepted that the applicant would have had a better chance with mobility in terms of greater opportunities if he had not had a disability, and that injury was one factor that had to be considered in assessing eligibility.

    Dennis Murphy

29. Mr Murphy made a statement dated 8 December 2015 indicating that he was currently an Inspector in Airport Operations at Sydney Airport and the applicant's current manager. He described the job that the applicant is currently doing which appears to me to be quite light. Mr Murphy was also on the mobility committee and noted it was the applicant's preference to be transferred to the airport.

30. Mr Murphy gave oral evidence and also indicated that there was no guarantee that the position the applicant would be transferred to would be a shift position. He was aware that the applicant was on a return-to-work program because of his injury. He wasn't aware that the applicant was having difficulties with his previous job in terms of the applicant's injury and accepted that, so far as an airport job was concerned, it was not ideal that the applicant was on restricted hours. He confirmed that there were 51 people in the mobility list for the relevant round.

    Timothy Fitzgerald

31. Mr Fitzgerald made a statement dated 24 August 2016, and gave oral evidence.

32. He stated that he was the NSW Regional Commander and was the Chair of the Mobility Committee. He explained how the mobility Committee consisted of a representative from each work area.

33. He was unable to recall the specifics of any discussions concerning the applicant in the course of the process but thought that it was likely that the applicant's injury restrictions would have been noted. He said that there would not, in any case, be any guarantee that the applicant would secure a shift position at the airport. The system, he explained, was that there was one person into a position and one out.

34. Mr Fitzgerald accepted that where injury existed, this would be a factor in filling a position and the position would have to be consistent with a worker's return to work program. This would limit the number and type of positions in which the person could be placed.

    Jim Beach

35. Mr Beach provided a statement dated 5 August 2016. He stated that he was in charge of passenger processing at Sydney Airport and oversees the section to which the applicant was transferred to at the airport.

36. Mr Beach indicated that the mobility process would not have been used to take the applicant out of his previous position if the applicant was having physical difficulties performing that job and could not recall any discussion with the applicant around that.

37. He did not consider that the applicant's transfer to the airport was unfair on the applicant.

    Generally

38. Attached to the statement of Ms Medley was a spread-sheet of all workers in that round of mobility transfer. That schedule lists all of the persons up for consideration for mobility transfer. Highlighted in red is that the applicant had a current workplace injury. He was the only person with an injury who was being considered.

    CONSIDERATION

39. It was submitted by the applicant that of all persons transferred to Sydney Airport, the only person transferred from a shift position to a non-shift position was the applicant. This appears to be the case.

40. It is clear from a report dated 4 August 2013 of the applicant's general practitioner that the applicant's physical condition was deteriorating in the position he had prior to the transfer. This was also the applicant's evidence and I accept it. I am also aware that whilst the mobility process was not used as an injury management tool, it is clear that the applicant's injury had to be taken into account.

41. I consider that it is likely to a significant degree that if the applicant was not suffering from an injury then he stood a better chance of getting a job with shifts. The applicant's transfer had to be to a position which accommodated his restrictions.

42. In an email to the applicant from Ms Medley following the 2011 mobility round when the applicant was not successful in obtaining a transfer out of the position he was finding difficult because of his injury, Ms Medley informed the applicant that he had not been successful in the round adding that "... for future moves your workplace injury may have an impact on where you can move to ..." (Applicant's Consolidated Statement dated 20 June 2016).

43. To my mind, it follows that the applicant was prejudiced in transferring to a position which he could physically do and which had shifts.

44. The mobility process was achieved in respect of the applicant and he was found a position which he could physically do but was a non-shift position. As a result the applicant has suffered a financial loss.

45. The scheme of the compensation legislation generally is not to place a worker in a better position or a worse position as a result of injury.

46. It is in my view much more likely to a significant degree that the applicant was transferred to a position without shifts because it was an available transfer to a position which accommodated his injury. It was much more likely that the applicant could and would have secured a transfer to a shift position had he not been injured. Transferring the applicant to a job which he could physically do at the airport was the core factor in the transfer process.

47. Whilst the mobility process allowed for the transfer from a shift position to a non-shift position, it was in the applicant's case, significantly more likely because of his injury because there were far more constraints on the jobs which the applicant could physically do.

48. A number of cases were referred to in submissions.

49. In Hobday v Comcare [2016] AATA 504 DP Constance was dealing with a claim by a worker who was reclassified into a lower paid position as a result of disciplinary action and not related to his psychological injury where the injury played no part in the positions he was given.

50. In Bortolazzo and Another v Comcare (1997) 75 FCR 385 Heeney, J was dealing with an applicant who worked in the Army Mess at Puckapunyal as a caterer. The catering was taken over from the Department of Defence by an outside company who ceased to pay all catering staff penalty allowances. Accordingly, all staff lost the allowance and not just the applicant. This loss had no connection with the applicant's injury.

51. In Comcare v Simmons [2014] FCAFC 4, the Court dealt with the case of a worker who preferred to be and work in Sydney for personal reasons rather than in Canberra where he had previously worked and was injured. In Canberra, his selected duties position carried an additional allowance at the time when he was injured. His loss of the allowance was not related in any way to his injury, but rather one of choice by the applicant in terms of where he wanted to live.

52. In the present case, the applicant's injury did influence where he could be placed and was clearly connected to him being placed in a job which he could perform as an injured person, even if such a job did not ordinarily offer a shift allowance.

53. In these circumstances the applicant should not be worse off because of his injury.

    CONCLUSION & DECISION

54. In my view the amount per week that the employee would receive if he were not incapacitated for work is $1,733.71, and not $1,431.52. The difference is the shift allowance.

55. Accordingly, the decision under review is set aside and the matter is remitted to Comcare for the determination of the compensation payable to the applicant as from 24 February 2014.

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of M J McGrowdie, Senior Member

..........................[sgd]..............................................

Associate

Dated: 30 November 2017

Date(s) of hearing:	1 and 2 September 2016
Solicitors for the Applicant:	C Santone, Santone Lawyers
Solicitors for the Respondent:	S Leembruggen, Sparke Helmore